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CRIMINOLOGY 



THE MACMILLAN COMPANY 

NEW YORK • BOSTON • CHICAGO • DALLAS . 
ATLANTA • SAN FRANCISCO 

MACMILLAN & CO., Limited 

LONDON • BOMBAY • CALCUTTA 
MELBOURNE 

THE MACMILLAN CO. OF CANADA, Ltd. 

TORONTO 



CRIMINOLOGY 



BY 

MAURICE PARMELEE, Ph.D. 

AUTHOR OF "THE SCIENCE OF HUMAN BEHAVIOR," "POVERTY 
AND SOCIAL PROGRESS," "THE PRINCIPLES OF AN- 
THROPOLOGY AND SOCIOLOGY IN THEIR RELA- 
TIONS TO CRIMINAL PROCEDURE," ETC. 



N*m fork 

THE MACMILLAN COMPANY 

1918 

All rights reserved 






Copyright, 1918 

By THE MACMILLAN COMPANY 

Set up and electrotyped. Published January, 1918 



PEB -4 1918 
©CI.A49-2167 



PREFACE 

A decade has passed since my book on the applications of 
criminology to criminal law and procedure was published. It 
grew out of several years of experience with criminals in courts 
and prisons in this country, and criminological research in 
Europe. At that time it was my intention to follow that book 
with a similar one on the applications of criminology to penal 
treatment. 

Since then the biological, psychological, and social sciences 
upon which criminology is based have advanced rapidly, and 
much work has been done within the criminological field itself. 
Hence much of the criminology of a decade or more ago is 
already obsolete. I have, therefore, abandoned my original 
plan, and, having commenced at the beginning of the subject, 
have attempted a comprehensive survey of the whole field of 
criminology. 

Much of the criminological writing heretofore has been more 
or less unilateral in its character. This has been due almost 
always to one-sided knowledge, sometimes also to prejudices 
and preconceived notions. For example, some writers have 
claimed that crime is due entirely to social causes, others have 
asserted that it is due entirely or almost entirely to the traits 
of the criminal himself. 

There is now available a much larger fund of knowledge from 
which to construct a criminological theory and to devize a prac- 
tical program. Consequently there is no longer any excuse for 
unilateral theories of crime. It is obvious that crime cannot 
be attributed to any one group of causes. Furthermore, it is 
manifestly impossible to measure precisely the extent to which 
any one factor gives rise to crime. Criminological theory 
today is more cautious and catholic, and does less violence to 
the facts. It is, therefore, more accurate though less pretentious 
than some of the older criminology. 

The present work is a companion volume to my Poverty and 
Social Progress. In these two books I have attempted to describe 



VI PREFACE 

the two greatest of social evils, namely, poverty and crime. 
The present work will, I hope, prove to be useful to many of 
those interested in and working with the problem of crime, and 
as a textbook for college and university courses in criminology. 
I wish to thank my brother, Dr. J. H. Parmelee of the Bureau 
of Railway Economics, Washington, for reading all of the manu- 
script and making many helpful suggestions. I wish also to 
thank Dr. Joseph A. Hill, Chief of the Division of Revision 
and Results of the United States Bureau of the Census, Wash- 
ington, for enabling me to inspect some of the proof sheets of 
the Bureau's report on Prisoners and Juvenile Delinquents. 

MAURICE PARMELEE. 

New York City, 
January, 19 18. 



CONTENTS 

PART I. NATURE AND EVOLUTION OF CRIME 

CHAPTER I 

The Study of Criminology 

PAGE 

Application of science to the study of crime — Criminology a hybrid 
science — The sciences used in criminological research — The prin- 
cipal branches of criminology — Sociological significance of the study 
of crime 3 

CHAPTER II 

THE ORIGIN AND EARLY EVOLUTION OF CRIME 

Equivalents of crime and punishment among animals — The limits of the 
analogy between man and the animal world — Alleged equivalents 
of crime among plants — Juridical punishment of animals by men — 
The beginnings of crime among men — Origin of crime in violations 
of custom — Influence of magic and religion upon the evolution of 
crime — Influence of moral ideas upon the evolution of crime — The 
earliest crimes: treason; witchcraft; sacrilege; incest; poisoning; 
violations of the hunting rules 7 

CHAPTER III 

CRIME AND SOCIAL CONTROL 

The struggle for existence — The conflict between individual and social 
interests — Forms of social control: habit; custom; public opinion; 
religion; magic; the state, government, and law — Social utility the 
criterion for social control — The limits of social control — The char- 
acteristic features of crime — The definition of crime — Crimes 
created by religious, despotic, and class legislation — Vicious acts 
stigmatized as criminal : acts penalized in order to stimulate public 
opinion against them — The distinctive traits of the criminal class. . 25 



V1U CONTENTS 

PART II. CRIMINOGENIC FACTORS IN THE ENVIRONMENT 
CHAPTER IV 

PHYSICAL ENVIRONMENT — CLIMATE, SEASON, AND THE WEATHER 

PAGE 

Influence of the physical environment in general — Influence of topog- 
raphy and the nature of the soil — Influence of climate, the seasons, 
and the weather — Meteorological factors mingled with cultural 
forces 43 

CHAPTER V 

URBAN AND RURAL CRIME AND VICE — DEMOGRAPHIC FACTORS 

Influence of demographic conditions — Apparent preponderance of urban 
over rural criminality — Forces which accentuate urban criminality: 
the concentration of population increases human desires, causes 
greater conflict of individual interests, intensifies the struggle for 
existence, and creates more opportunities for crime — The organiza- 
tion of vice in cities — Unorganized vice in the country — Influence 
of the growth of population upon crime 54 

CHAPTER VI 

THE ECONOMIC BASIS OF CRIME 

The economic struggle for existence — Economic changes and crime: 
seasonal fluctuations; the trade cycle; prices; wages — The economic 
crimes: crimes against property — The economic status of the crim- 
inal — Economic classification of criminals — Occupational distribu- 
tion of criminals — Professional criminality — Influence of economic 
organization upon crime — Poverty and crime — The standard of 
living and crime — Wealth and crime and vice 67 

CHAPTER VII 

THE POLITICAL BASIS OF CRIME 

Political organization and crime — Theories of government — Govern- 
mental responsibility for crime: inefficient and corrupt government 
— Influence of war and militarism upon crime 92 

CHAPTER VIII 

THE INFLUENCE OF CIVILIZATION UPON CRIME 

Religion and crime — -Science and crime — Art and crime — The press and 

crime — The advance of civilization and the increase of crime . 106 



CONTENTS IX 

PART III. CRIMINAL TRAITS AND TYPES 
CHAPTER DC 

THE ORGANIC BASIS OF CRIMINALITY 

PAGE 

Anatomical and physiological basis of criminality — The theory of the 
born criminal: Lombroso — The organic basis of the mental factors 
in criminality: instinct; feeling; intelligence — Abnormalities in the 
neural basis of mind — The organic causes of amentia — The organic 
causes of dementia, the neuroses, and abnormal appetites — Race 
and criminality 127 

CHAPTER X 

THE MENTAL BASIS OF CRIMINALITY 

Instinct — Habit — Feeling — Intelligence — Types of mental abnormality: 
amentia; dementia; insanity; the neuroses; abnormal habits — The 
mental inadaptability of the criminal — Mental defect and moral de- 
ficiency: moral imbecility and insanity — The social maladjustment 
of the criminal 142 

CHAPTER XI 

CRIMINAL AMENTS 

Characteristic traits of criminal aments — The measurement of mental 

ability — The extent of criminal amentia 156 

CHAPTER XII 

PSYCHOPATHIC CRIMINALS 

The borderline between amentia and normal mentality — The borderline 
between amentia and dementia and insanity — Demented and in- 
sane criminals — The influence of physiological crises — Influence of 
bad habits, the neuroses, traumatic injuries, abnormal suggestibil- 
ity, mental conflicts, etc. — Summary of mental traits prevalent 
among criminals 171 

CHAPTER XIII 

THE TYPES OF CRIMINALS 

Simple classifications of criminals — Lombroso's classification — Ferri's 
classification — Classifications derived from Lombroso and Ferri — 
Garofalo's classification — Criticism of classifications of criminals — 
A new classification of criminal types — Description of the principal 
criminal types — Distribution of criminals among the criminal types 186 



X CONTENTS 

CHAPTER XIV 

JUVENILE CRIMINALITY 

PAGE 

Differences between childhood and adulthood — Extent and character of 
juvenile crimes — Poverty and juvenile criminality — Parentage and 
home life: broken homes; illegitimacy — Education and crime: in- 
tellectual education; moral education; vocational training; illiteracy 
and criminality — Recreation and crime — Immigration and crime — 
Effect of imprisonment upon young criminals 207 

CHAPTER XV 

FEMALE CRIMINALITY 

Apparent preponderance of male over female criminality — Extent and 
character of female crimes — Conjugal condition of criminals — Dif- 
ferences between men and women: physical inferiority and sym- 
pathetic nature of woman; greater variability and katabolism of 
man — Lenient treatment of female criminals — Woman shielded 
from criminality by her secluded life — Extra-judicial female crimes 
— Prostitution and crime : 231 

PART IV. CRIMINAL JURISPRUDENCE 
CHAPTER XVI 

THE EVOLUTION OF CRIMINAL LAW AND THE CLASSIFICATION OF CRIMES 

The origin of criminal law: private vengeance; the lex talionis; composi- 
tion — Influence of despotic, class, and priestly rule — Penal codes — 
The Roman law — The English common law — The king's peace — 
Crimes classified as acts — Functional classifications of crimes — A 
subjective classification of crimes — Relation between the criminal 
and the civil law 251 

CHAPTER XVII 

THE FUNCTIONS OF CRIMINAL PROCEDURE 

The procedure of accusation — The procedure of investigation — English 
and French criminal procedure — Combination of the procedures of 
accusation and investigation: public prosecution — The reform of 
criminal procedure 272 

CHAPTER XVIII 

THE SCIENTIFIC PRINCIPLES OF EVIDENCE 

Superstitious methods of securing proof: the wager; the ordeal; torture — 
The English law of evidence — Medical jurisprudence: the evils of 



CONTENTS XI 

PAGE 

contradictory medical testimony; the training of medico-legal ex- 
perts — Expert testimony — Abolition of the coroner's office — The 
oath — The psychological examination of witnesses: the causes of 
erroneous testimony; the psychological expert — The scientific stage 
of evidence 285 

CHAPTER XIX 

PUBLIC DEFENSE IN CRIMINAL TRIALS 

The injustice of private defense — Public defense and the reform of 
criminal procedure — Abolition of the plea of guilty — Significance of 
public defense for a scientific criminal procedure: the individualiza- 
tion of punishment; the education and selection of prosecutors, de- 
fenders, and judges — Public defense and the contradictory debate — 
Free civil justice 301 

CHAPTER XX 

THE JUDICIAL FUNCTION 

The English jury — The characteristics of jurors — Criticisms of the jury 
— The functions of the judge — The training and appointment of 
judges — The control of the judiciary 316 

CHAPTER XXI 

THE POLICE FUNCTION 

The police and the army — Police organization and administration: na- 
tional and local police control; the rural police — The functions of the 
police — The training and selection of the police force — The integrity 
of the police — Evil influence of unenforceable laws against vice — 
Homicide in the United States — Arrest — Preliminary detention — 
Provisional liberation — Indemnification for mistaken detention 
and prosecution 335 

PART V. PENOLOGY 
CHAPTER XXII 

THE ORIGIN AND EVOLUTION OF PUNISHMENT 

The objects of punishment: vengeance; elimination; restraint; deterrence; 
restitution; reformation; etc. — The varieties of penalties — Imprison- 
ment — Transportation — Poetic penalties — The scope of punish- 
ment — The severity of punishment: influence of despotism, war, 
magic, and religion — The Inquisition — The modern humanitarian 
movement: the Renaissance; the industrial revolution; the division 
of labor; modern science 357 



Xll CONTENTS 

CHAPTER XXIII 

THE MORAL BASIS OF PENAL RESPONSIBILITY 

PAGE 

The sanctions of punishment — The nature of moral phenemena — Moral 
concepts and social control — The theory of penal responsibility — 
Free will and determinism — The psychological basis of the penal 
function: anger; vindictiveness; fear — The doctrine of partial re- 
sponsibility — Penal responsibility and the individualization of 
punishment t>73 

CHAPTER XXIV 

THE SENTENCE AND THE INDIVIDUALIZATION OF PUNISHMENT 

The fundamental principle of modern criminal law — The types of in- 
dividualization: legal; judicial; administrative — The criteria of 
individualization: the crime; the criminal; social conditions; the 
origin, type, and intensity of the criminality — Limitations upon 
individualization — The indefinite sentence — Suspension of sentence 
and probation — The penal treatment of the young: the juvenile 
court — Judicial and administrative individualization: rehabilita- 
tion; periodical revision of sentences ! 389 

CHAPTER XXV 

THE DEATH PENALTY 

Arguments for and against capital punishment — The abolition of the 
death penalty — Humanitarian sentiment and the death penalty — 
The death penalty and political crime — Methods of capital punish- 
ment 410 

CHAPTER XXVI 

THE PRISON SYSTEM 

The types of prisons — The cellular prison — Development of the person- 
ality of the prisoner — Prison administrators — Solitary and social 
prison life — Classification of prisoners — Prison labor: prison main- 
tenance; wage labor for prisoners — Evils of contract labor — Educa- 
tional, religious, and recreational facilities — Prison discipline: causes 
of misconduct in prison; malingering; prison penalties; the marking 
system — Self government in prisons — Sex problems in prisons — The 
prison psychosis — The prison type 421 

CHAPTER XXVII 

A SCHEME OF PENAL TREATMENT 

Prison evils — -Houses of detention — Local jails — Reception and ob- 
servation prisons — Types of penal institutions: reformatories; col- 



CONTENTS Xlll 

PAGE 
onies; asylums; penitentiaries — Release and after-care — Substitutes 
for imprisonment — Corporal punishment — Restitution — Steriliza- 
tion 441 

PART VI. CRIME AND SOCIAL PROGRESS 
CHAPTER XXVIII 

POLITICAL AND EVOLUTIVE CRIMES AND CRIMINALS 

The distinction between common crimes and political and evolutive 
crimes — Evolutive and involutive vice — Freedom of thought and 
of action — Political freedom — Freedom of speech — Treason and 
sedition — The types of evolutive and political criminals: radicals 
and conservatives; the pathological type; the emotional type; the 
rational type — The instigation of political and evolutive crimes — 
The treatment of evolutive crime 453 

CHAPTER XXIX 

EVOLUTIVE CRIME AND SOCIAL READJUSTMENT 

The significance of evolutive crime — Religious restrictions upon free- 
dom — Christianity as the national religion — The laws against blas- 
phemy and profanity — Sabbatarian legislation — Religious discrim- 
ination in military conscription — Sumptuary and economic legis- 
lation — The law against suicide — Repression in matters of sex and 
reproduction — The conservatism of the human mind — The 
prevention of evolutive crime: flexibility in the organization of so- 
ciety — Evolutive crime and democracy 469 

CHAPTER XXX 

THE PREVENTION OF CRIME 

Changes in the nature and extent of crime — The prevention of crime 
dependent upon the prevention of other social evils — Individual 
and social criminogenic factors — The normal life as a preventive of 
crime 489 

Appendix A. Prices of Cereals and Crimes against Property .... 493 

Appendix B. A Biometric Study of the English Convict 495 

Partial Bibliography 503 

Index 515 



PART I 
NATURE AND EVOLUTION OF CRIME 



CRIMINOLOGY 

CHAPTER I 
THE STUDY OF CRIMINOLOGY 

Application of science to the study of crime — Criminology a hybrid science 
— The sciences used in criminological research — The principal 
branches of criminology — Sociological significance of the study of 



Few subjects arouse so universal or so deep an interest as 
the study of crime. This interest is due in the main to the 
adventurous and romantic traits in human nature. Criminal 
conduct appeals to these human traits because it is regarded 
as being a spontaneous response to impulse, and even the most 
prosaic and conventional individual chafes to a certain extent 
under the restrictions of law and morality. If this interest is 
not so great as to become morbid, it may have great utility, 
because crime is both a serious practical problem and an im- 
portant subject for scientific study. 

During the past century the extent to which scientific methods 
have been applied to the study of human and social phenomena 
has increased greatly. To be sure, there still is much opposi- 
tion to the scientific study of these phenomena. Some of this 
opposition arises from anthropocentric notions with regard 
to the exalted position of man in the universe. Some of it arises 
from anti-scientific theological dogmas. Some of it is due to 
propagandists who are eager to push through certain social 
reforms, and are therefore unwilling to await the results of 
careful and cautious scientific investigation. All of this opposi- 
tion creates a prejudice against attributing human conduct 
to natural causes. But slowly this opposition is being over- 
come, and crime will before long be regarded as a purely natural 
phenomenon. 



4 CRIMINOLOGY 

Special attention has been devoted to the study of crime 
and the criminal since the remote past. The early pseudo- 
sciences of physiognomy and phrenology attempted to describe 
the traits of the criminal. At the present time many sciences 
are contributing to this study. From the laboratories of these 
sciences, from the researches of scientific workers, from statis- 
tical investigations of various kinds are to be derived the facts 
for the study of crime and the criminal. These facts are not 
adequate as yet for a final synthesis, but they nevertheless 
have great scientific and practical value. 

Criminology is not one of the fundamental sciences, but is a 
hybrid product of several sciences. Zoology, anthropology, 
history, and sociology contribute to the description of the na- 
ture, origin, and evolution of crime. Meteorology, demography, 
and the special social sciences, such as economics, politics, etc., 
contribute to the analysis of the environmental causes of crime. 
Anatomy, physiology, psychology, and psychiatry furnish the 
facts and methods for the study of the traits arid types of crim- 
inals. Comparative jurisprudence and law contribute to the 
study of the penal treatment of crime and the criminal. 

Consequently, many scientific methods are applied in crim- 
inological research. Zoological, anthropological, and historical 
methods are used in tracing the evolution of crime from its 
prototypes among animals to the forms it takes in civilized 
society. 

Meteorological methods are utilized in studying the influence 
of the weather, climate, season, topography, and other telluric 
forces upon criminal conduct. These factors of the external 
physical environment are of fundamental importance in any 
study of conduct. Demographic methods are used in studying 
the influence of the density and distribution of the population, 
of the increase or decrease of population, and of migrations of 
population. 

The sociological method involves a study of the numerous 
social factors which cause criminal conduct and play a part in 
making criminals and criminal types. Among these factors are 
the economic, political, religious, moral, and artistic factors. 
Closely connected with the sociological method is the statistical 
method, because it is frequently used in sociological investiga- 
tion. But the statistical method may be used to aid any of the 



THE STUDY OF CRIMINOLOGY 5 

other methods, so that it must be regarded as ancillary to all of 
these methods. 

The anatomical method brings to light abnormalities and 
malformations of the external structure of the organism which 
in some cases are of significance with respect to criminal conduct. 
It reveals defects and derangements of the internal organs which 
frequently have a far-reaching influence for evil upon conduct. 
It describes the structure of the nervous system, a knowledge of 
which is absolutely necessary for the study of mental traits. 

The physiological method studies the organic processes in the 
viscera and elsewhere in the body, and brings to light functional 
derangements which frequently have an injurious effect upon 
conduct. The clinic o-pathological method makes possible an 
intensive study of the defective, abnormal, and deranged condi- 
tions revealed by the anatomical and physiological methods. 

The psychological method, supported by the anatomical, 
physiological, and clinico-pathological methods, studies the 
mental traits and processes in order to ascertain in what mental 
states, whether normal or abnormal, criminal acts are com- 
mitted. This method is very helpful in devizing a classification 
of criminal types, because criminal conduct, like all forms of 
conduct, is determined. primarily by these mental states. Inas- 
much as many of the mental states which give rise to criminal 
conduct are abnormal, psychiatry plays an important part in the 
application of the psychological method. 

In this book we are to make a more or less comprehensive 
survey of criminology. The topics to be treated in the succeed- 
ing chapters may be classified under the following heads, which 
indicate the principal branches of criminological science: — 

i. Theory of the nature and evolution of crime. 

2. Criminal sociology. 

3. Criminal anthropology. 

4. Criminal psychology. 

5. Criminal jurisprudence. 

6. Penology. 

The study of crime has great sociological significance. It 
furnishes one of the most striking illustrations of the relation 
between the individual and society, and the conflict between 
individual and social interests. The penal treatment of the 
criminal is the most drastic form of social repression, and 



6 CRIMINOLOGY 

criminology is fundamentally a study of social control. Hence 
it is that criminology and ethics are closely related, and the 
study of crime involves the discussion of numerous ethical 
problems of great social importance and scientific interest. 

Crime is ordinarily regarded as a pathological and abnormal 
form of conduct. The study of the abnormal is always of 
significance not only for its own sake, but also because of the 
light it throws upon the normal as well. It is impossible to 
recognize and understand fully the normal until the abnormal 
variations have been studied. So that the study of criminal 
conduct is instructive with respect to normal human conduct. 
It is frequently difficult to ascertain what is normal conduct, and 
in dealing with this problem I shall apply biological, psycho- 
logical, social, and ethical norms. 



CHAPTER II 
THE ORIGIN AND EARLY EVOLUTION OF CRIME 

Equivalents of crime and punishment among animals — The limits of the 
analogy between man and the animal world — Alleged equivalents of 
crime among plants — Juridical punishment of animals by men — The 
beginnings of crime among men — Origin of crime in violations of cus- 
tom — Influence of magic and religion upon the evolution of crime — 
Influence of moral ideas upon the evolution of crime — The earliest 
crimes: treason, witchcraft, sacrilege, incest, poisoning, violations of 
the hunting rules. 

The equivalents or analogues of crime are to be found among 
animals other than man. Some criminologists, indeed, have 
sought for these equivalents in the plant world as well. The 
search for equivalents of crime outside of the human world is 
justified. Crime is a natural phenomenon, and is, therefore, 
closely related to other natural phenomena. In accordance with 
the theory of evolution we are constrained to believe that it has 
evolved out of other phenomena, and must seek its origin in 
these other phenomena. 

Equivalents of Crime and Punishment Among Animals 

The mammals and birds share many of the instincts and feel- 
ings possessed by man. The same is true to a less degree of the 
remainder of the vertebrates; while some of the invertebrates, 
such as the insects, probably possess at least a few of these in- 
stincts, and possibly a few of these feelings, though the last 
surmise is doubtful. Just as in man the social instincts and 
feelings, partly under the direction of the intellect, have given 
rise to human society, in similar fashion the corresponding in- 
stincts and feelings have given rise to a social manner of life 
among many of these animal species. In each of these animal 
societies habits and customs arise which in the long run aid the 
survival of the species. Consequently, acts which are contrary 
to these habits and customs will usually be injurious to the 



8 CRIMINOLOGY 

species, and will be reacted against by the members of the 
species. 

Many such acts and the reactions against them have been 
observed among animals. Animals have been known to kill, 
to steal, to maltreat each other, and in many other ways to 
injure their congeners and their species. Furthermore, such 
acts have been traced to abnormal traits of the offenders which 
have apparently caused them. Just as in man aberrations of 
the instinctive, affective, and intellectual traits and the physical 
abnormalities which underlie these aberrations frequently lead 
to anti-social conduct; in similar fashion like aberrations and 
abnormalities lead to corresponding conduct on the part of 
animals. Many cases have been described where malformation 
of the brain, abnormalities of the viscera, nervous disorders, 
etc., have given rise to aberrant conduct. 1 

Equivalents of punishment also are found among animals. 
When acts contrary to the habits and customs.of the species are 
committed, members of the species have in many cases been 
observed to display anger and the desire to revenge which have 
led them to inflict pain upon the offending individual, and to 
drive the offender away from the group, or even to kill the 
offender. 

I have not the space to describe in detail these equivalents 
or analogues of crime and of punishment among animals. But 
while this analogy is very significant, and should therefore be 

1 Lacassagne has classified the causes of aberrant conduct among animals 
according to the traits whose aberrations give rise to such conduct. He 
says that they are due to aberrations of (i) the nutritive instinct, (2) the 
sexual instinct, (3) maternal love, (4) the destructive instinct, (5) the in- 
stinct of vanity, (6) the social instincts. (A. Lacassagne, De la criminalite 
chez les animaux, in the Revue scientlfiqae, Vol. Ill, No. 2, Jan. 14, 1882, 
pp. 34-42.) 

To quote his own words, aberrant conduct among animals is due to "the 
exaggeration of these instincts, 'exaggerations which are harmful to other 
animals of the same species, which manifest themselves by special kinds 
of acts which are called offenses or crimes in human societies." Such con- 
duct is due sometimes to exaggerations of some of these traits, but in other 
cases is due to the excessive weakness of the same or of other traits. It 
may be questioned whether some of the instincts mentioned by Lacassagne 
actually exist, as, for example, the destructive instinct and the instinct of 
vanity. However, his classification gives some idea of the kinds of aberra- 
tions which give rise to these equivalents of crime among animals. 



THE ORIGIN AND EARLY EVOLUTION OE CRIME 9 

pointed out in any study of crime, it is important that the 
analogy should not be carried too far, as has been done by some 
writers. There are differences between man and the animal 
world which place limitations upon the analogy. 

To begin with, public opinion and moral ideas are not to be 
found among, animals, or if found at all only in a most rudimen- 
tary form; whereas these phenomena are fully developed among 
men, and play an important part in determining the character of 
crime. Neither public opinion nor moral ideas can exist without 
a well-developed means of communication such as speech, and 
man is the only animal which possesses the faculty of speech. In 
the second place, no animal other than man possesses religious 
beliefs or magical ideas, and both of these have had much in- 
fluence upon crime in human social evolution. In the third 
place, no animal other than man has developed the state, 
government, and law, and these political institutions largely de- 
termine the nature of crime in the higher stages of social evo- 
lution. 

Because of these differences there can be no strict analogy 
between " crime" among animals and crime among men. And 
yet some writers have tried to draw such a strict analogy. For 
example, one writer asserts that courts of justice and criminal 
procedure are to be found among animals: — "The instances 
recorded of animals holding courts of justice and laying penalties 
upon offenders are too numerous and well authenticated to 
admit of any doubt. This kind of criminal procedure has been 
observed particularly among rooks, ravens, storks, flamingoes, 
martins, sparrows, and occasionally among some gregarious 
quadrupeds. It is as clearly established as human testimony can 
establish anything that these creatures have a lively sense of 
what is lawful or allowable in the conduct of the individual, so 
far as it may affect the character of the flock or herd, and are 
quick to resent and punish any act of a single member that may 
disgrace or injure the community to which he belongs." l This 
writer is interpreting in altogether too anthropomorphic a 
fashion the assemblies of gregarious birds at some of which 
offenders are punished spontaneously, but without the formal 
action of law and justice. 

1 E. P. Evans, Evolutional Ethics and Animal Psychology, New York, 
1898, p. 230. 



IO CRIMINOLOGY 

Some writers have gone so far as to extend the concept of 
crime even to the plant world. For example, Lombroso con- 
sidered the habits of insectivorous plants as equivalents of crime 
in the plant world. 1 But this is manifestly an erroneous inter- 
pretation. In the first place, the differences between the traits 
of plants and of animals are so great as to stretch the analogy 
altogether too far. There is little if any reason to think that 
plants have either instincts, or feelings, or intelligence. Such 
being the case we can hardly speak of the " behavior" of plants 
in any sense which is at all comparable with the behavior of 
animals. In the second place, it is hardly possible to introduce 
the idea of crime with respect to the actions of one species upon 
another species, especially when the two species belong to en- 
tirely different realms of the organic world. So that the so- 
called "murders" of insects by insectivorous plants mentioned 
by Lombroso are " crimes" much less than the killing of animals 
by man for food or for amusement. 

Juridical Punishment of Animals by Men 

I have now stated the only scientific sense in which crime 
or the analogue of crime can be said to exist outside of mankind. 
But a popular notion of the criminality of animals has been 
prevalent in the past and still exists today, which should be 
noted in passing. This belief is that animals are morally re- 
sponsible for their acts, and that consequently when an animal 
does injury to human beings it should be punished in much the 
same way as if it were a human being. As a result of this belief, 
during the Middle Ages and earlier many animals were tried and 
convicted for alleged crimes against human beings. 2 Various 
penalties were inflicted, the most frequent one perhaps being 
capital punishment. Curiously enough, this notion was some- 
times extended to the plant world as well, so that plants also 
were held morally responsible for their alleged acts towards man. 
For example, Jesus Christ was apparently laboring under this 

1 C. Lombroso, Uhomme criminel, Paris, 1895, Vol. I, Chap. 1. 

2 For an account of many such cases see, E. P. Evans, The Criminal Pros- 
ecution and Capital Punishment of Animals, London, 1906. See also, E. 
Westermarck, The Origin and Development of the Moral Ideas, London, 1906, 
Vol. I, Chap. 10. 



THE ORIGIN AND EARLY EVOLUTION OF CRIME II 

delusion when he cursed the fruitless fig tree of Bethany for not 
furnishing food to mankind. 1 

Several things should be noted with respect to this notion. 
In the first place, it is evident that this belief arises out of an 
anthropomorphic interpretation of the animal and plant worlds. 
Man has assumed that animals and even plants think, and feel, 
and will like himself, and that therefore their acts should be 
treated like the acts -of human beings. In the second place, 
in most if not all of these cases the animals were punished for 
their offenses against men. In fact, I do not know of a single 
case where an animal was punished by judicial process for an 
offense committed against a congener or a member of any other 
non-human species. While this may have been desirable from 
the human point of view, it was hardly fair to these animals. 
Man does not hesitate to kill animals in order to secure food, 
and for other human purposes. Furthermore, the great major- 
ity of human crimes are offenses committed against human 
beings, and the number of offenses against animals recognized 
by the law are very few. So that the scales of human justice 
have been heavily overweighted in the interest of human welfare 
in man's attempts to hold animals morally and penally respon- 
sible for their acts. 

In the last place, a distinction should be noted between two 
kinds of judicial processes against animals. The first kind of 
process is the one I have so far been describing, namely, the 
trial and condemnation of individual animals for offenses which 

1 Some of the Christian apologists have interpreted this tale as indicating 
that Jesus regarded the tree as morally responsible, and therefore guilty of 
a delinquency. The accounts given of this alleged occurrence in the gospels 
of Matthew and of Mark suggest that Jesus uttered his curse in an access of 
pettish rage because he was deprived of his breakfast when hungry. "Now 
in the morning as he returned into the city, he hungered. And when he 
saw a fig tree in the way, he came to it, and found nothing thereon, but 
leaves only, and said unto it, Let no fruit grow on thee henceforward for ever. 
And presently the fig tree withered away." (S. Matthew, XXI, 18, 19.) 
"And on the morrow, when they were come from Bethany, he was hungry: 
And seeing a fig tree afar off having leaves, he came, if haply he might find 
any thing thereon: and when he came to it, he found nothing but leaves; 
for the time of figs was not yet. And Jesus answered and said unto it, No 
man eat fruit of thee hereafter for ever." (S. Mark, XI, 12-14.) This is 
like the child or savage who trips over a stone, and then strikes it in anger 
because it has hurt him. 



12 CRIMINOLOGY 

they have committed against human beings. In these cases 
the guilty animals are apprehended and the penalties are in- 
flicted directly upon them. In the second kind of process a 
whole species which is doing injury to mankind, such as preda- 
tory carnivores, thieving birds, noxious insects, etc., is tried, 
and if condemned measures are taken against it which may be 
regarded either as protective or as punitive, or possibly as both. 
At first these measures were probably magical practises directed 
towards destroying or driving away the offending species. Later 
these measures became religious in their character in the form 
of anathemas and curses uttered against the offending animals. 
In this kind of judicial process it is possible to inflict the penal- 
ties prescribed directly upon the culprits in very few if any of 
the cases, so that the efficacy of the magical and religious meas- 
ures have to be relied upon to attain this end. 1 



1 Cf. Karl von Amira, Thierstrafen und Thierprocesse, Innsbruck, 1891. 
The following statement by Evans is of interest in this connection: 
"Von Amira draws a sharp line of technical distinction between Thier- 
strafen and Thierprocesse; the former were capital punishments inflicted 
by secular tribunals upon pigs, cows, horses, and other domestic animals 
as a penalty for homicide; the latter were judicial proceedings instituted 
by ecclesiastical courts against rats, mice, locusts, weevils, and other vermin 
in order to prevent them from devouring the crops, and to expel them from 
orchards, vineyards, and cultivated fields by means of exorcism and excom- 
munication. Animals, which were in the service of man, could be arrested, 
tried, convicted and executed, like any other members of his household; it 
was, therefore, not necessary to summon them to appear in court at a speci- 
fied time to answer for their conduct, and thus make them, in the strict 
sense of the term, a party to the prosecution, for the sheriff had already 
taken them in charge and consigned them to the custody of the jailer. In- 
sects and rodents, on the other hand, which were not subject to human con- 
trol and could not be seized and imprisoned by the civil authorities, de- 
manded the intervention of the Church and the exercise of its supernatural 
functions for the purpose of compelling them to desist from their devasta- 
tions and to retire from all places devoted to the production of human sus- 
tenance. The only feasible method of staying the ravages of these swarms 
of noxious creatures was to restort to ' metaphysical aid' and to expel or to 
exterminate them by sacerdotal conjuring and cursing. The fact that it was 
customary to catch several specimens of the culprits and bring them before 
the seat of justice, and there solemnly put them to death while the anathema 
was being pronounced, proves that this summary manner of dealing would 
have been applied to the whole of them, had it been possible to do so." 
(E. P. Evans, The Criminal Prosecution and Capital Punishment of Animals, 
London, 1906, pp. 2-3.) 



the origin and early evolution of crime 13 

The Beginnings of Crime Among Men 

There is no historical account of the beginnings of crime 
among men, since they took place in the dim prehistoric past. 
Nevertheless there are sources of information from which we 
can derive facts of great significance with respect to this subject. 

In the first place, the first men, like the men of today, be- 
longed to the order of primates and the class of mammals. 
Consequently they shared the characteristic traits of the mam- 
malian world. In other words, they had much the same in- 
stincts and emotions as the remainder of the mammalian world, 
and especially as the mammals most closely related to them, 
such as the other primates. These men probably differed from 
other mammals mainly with respect to intelligence, the superior 
excellence of the human intellect being man's most distinctive 
trait. 

Possessing these mammalian traits, these first men experi- 
enced anger, sympathy, sexual passion, parental love, and all 
the other instinctive impulses and feelings which play an im- 
portant part in determining human conduct. Their social 
tendencies led them to form social groups. As individuals they 
formed habits. As social groups they evolved customs, and 
violations of these customs doubtless aroused the character- 
istic reactions from the group which among animals I have 
called the equivalents or analogues of crime. When speech 
developed, it became more feasible to have public opinion and 
then moral ideas with respect to conduct. Furthermore, prob- 
ably as a result of the stimulus to thinking from the interchange 
of ideas made possible by speech, magical and religious ideas 
began to develop which have also had a vast influence upon 
human conduct. 

In the second place, numerous studies have been made of 
communities of a low order of culture, and there is reason to 
believe that the conditions found in these communities repro- 
duce in a measure, or, should we say, perpetuate, the conditions 
which obtained in the early stages of human social evolution. 
Consequently, the crimes, or nearest equivalents to crimes, 
found in these primitive human groups probably indicate fairly 
well what were the first crimes, or analogues of crimes, among 
men. 



14 criminology 

Origin of Crime in Violations of Custom 

All of these studies show that violations of the customs of 
the community constituted some if not all of the primitive 
crimes. "In primitive society custom stands for law, and even 
where social organisation has made some progress it may still 
remain the sole rule for conduct." x In most cases the laws 
of the higher stages of social evolution have developed out of 
the customs of the community, and even down to the present 
day in the most cultured communities changes in the laws are 
determined mainly by changes in the customs. 2 Indeed, many 

1 E. Westermarck, op. cit., Vol. I, p. 161. 

2 "The laws themselves, in fact, command obedience more as customs 
than as laws. A rule of conduct which, from one point of view, is a law, is 
in most cases, from another point of view, a custom; for, as Hegel remarks, 
'the valid laws of a nation, when written and collected, do not cease to be 
customs.' There are instances of laws that were never published, the knowl- 
edge and administration of which belonged to a privileged class, and which 
were nevertheless respected and obeyed. And among ourselves the ordinary 
citizen stands in no need of studying the laws under which he lives, custom 
being generally the safe guiding star of his conduct. Custom, as Bacon 
said, is 'the principal magistrate of man's life,' or, as the ancients put it, 
'the king of all men.' 

" Many laws were customs before they became laws. Ancient customs lie 
at the foundation of all Aryan lawbooks. Mr. Mayne is of opinion that 
Hindu law is based upon customs which existed even prior to and independ- 
ent of Brahmanism. The Greek word vbfxos means both custom and law, 
and this combination of meanings was not owing to poverty of language, 
but to the deep-rooted idea of the Greek people that law is, and ought to 
be, nothing more and nothing less than the outcome of national custom. 
A great part of the Roman law was founded on the mores ma jorum; in the 
Institutes of Justinian, it is expressly said that 'long prevailing customs, 
being sanctioned by the consent of those who use them, assume the nature 
of Laws.' The case was similar with the ancient laws of the Teutons and 
Irish." (E. Westermarck, op. cit., Vol. I, pp. 164-5.) 

Chapter VII in Westermarck, entitled "Customs and Laws as Expres- 
sions of Moral Ideas," gives an excellent discussion of this subject. It 
should, however, be noted that this title suggests that moral ideas always 
precede customs. Obviously this could not be so, and many customs must 
have existed long before man was capable of possessing moral ideas. The 
explanation of the title of this chapter probably is that inasmuch as Wester- 
marck believes that morality can be traced back to certain so-called "moral 
emotions," morality in this affective form is to be found back of most if 
not all customs. If this is a correct explanation of this title, the use of the 
term "moral ideas" in this title is in part incorrect. I shall criticize Wester- 
marck's theory of the "moral emotions" in Chapter XXIII. 



THE ORIGIN AND EARLY EVOLUTION OF CRIME 1 5 

customs will always exist in every human group, and there will 
always be some tendency on the part of the community to react 
in a hostile fashion to violations of these customs. However, 
there has already been a good deal of variation as to the number 
of customs which come to be sanctioned by moral ideas, re- 
ligious beliefs, and magical practises, violations of which are 
punished by the group as a whole. It is possible that in the 
future a smaller number of customs will receive this sanction, 
and that consequently only personal and not social reactions 
will be possible against them. 

The primary causes of the customs of any group are to be 
found in the innate traits of human beings and in the features 
of the environment. The customary relations between the 
sexes, between parents and offspring, etc., are determined in 
large part by instincts and feelings. The food customs are 
determined to a large extent by the environment. If the avail- 
able food is in the form of wild beasts, various hunting customs 
arise. If the environment causes frugivorous habits, customs 
with respect to the gathering and the apportioning of the fruit 
arise. 

Influence of Magic and Religion upon the 
Evolution of Crime 

But secondary factors make their appearance when, largely 
as a result of the evolution of speech, religious and magical 
ideas and practises and moral ideas develop. Probably rather 
early in his career upon this planet man began to think about 
the nature and causes of his environment and of himself. His 
thinking was not necessarily for purposes of philosophic specu- 
lation, but probably for a pragmatic reason, namely, because 
he wanted to influence the forces of nature for his own benefit. 
As a result of this thinking he eventually evolved the animistic 
ideas which underlie all religious and magical beliefs and prac- 
tises. Briefly stated, these ideas are to the effect that the events 
which take place in nature, and the occurrences which happen 
to or in man, are caused and governed by beings which are 
conceived to be more or less like the beings of the animate 
world, and sometimes like man himself. It is, therefore, to the 
interest of man to influence these so-called spiritual beings to 
regulate the affairs of the universe, or at least of that part of 



1 6 CRIMINOLOGY 

the universe which concerns him, in such a manner as to pro- 
mote the safety and happiness of man. 

On the basis of these animistic ideas have developed a vast 
number of methods of influencing these alleged spiritual beings. 
These methods may be roughly classified into two main groups, 
though the distinction between the two is not absolute, and they 
tend to shade into each other. These are the magical and the 
religious methods. The magical methods are those by means of 
which it is attempted to coerce these spiritual beings to-do the 
will of man. The religious methods are those by means of 
which it is attempted to persuade these hypothetical beings to 
do what is desired by man. These differences in methods have 
probably arisen in part out of differences of opinion as to the 
nature of these spiritual beings. Magical methods postulate 
the existence of spiritual beings which can be coerced. Religious 
methods postulate the existence of spiritual beings which may 
or may not be coerced, but which may possibly be persuaded. 
In many cases the co-existence of both of these orders of animis- 
tic beings has been postulated. For these reasons magical and 
religious methods have frequently accompanied each other, 
and have been practised at the same time and place. 

Magical methods may be classified roughly into the methods 
of contagious magic and those of imitative magic. 1 The con- 
tagious methods are those which attempt to influence some- 
thing through something else which has at one time been in 
contact with the first thing. For example, an attempt may be 
made to injure an enemy by doing injury to something which 
was at one time a part of him, as, for example, nail parings, 
hair, etc. The imitative methods are those which attempt to 
bring about desired events by causing other events which re- 
semble in certain respects the desired events. For example, an 
attempt may be made to stimulate the fertilizing of the soil 
in order to secure a good harvest by going through the process 
of sexual fertilization. 

It is obvious to civilized man that both of these kinds of 
magical methods are based upon false analogies. But this was 
not apparent to primitive men, and has not been clear to many 
human beings even to the present day. The gradual disap- 

1 Cf. J. G. Frazer, The Golden Bough, especially The Magic Art and the 
Evolution of Kings, Vol. I, London, 1911. 



THE ORIGIN AND EARLY EVOLUTION OF CRIME 1 7 

pearance of magic has come about, in the first place, as a result 
of the repeated failure of magical methods to attain the ends 
desired, and, in the second place, as a result of the spread of 
scientific knowledge with regard to the true causes of the events 
which take place in nature. 

Furthermore, it is obvious that magic has to a large extent 
grown out of a process of mental association. In fact, many of 
those who have practised magic have lost sight of or have never 
been conscious of the animistic basis of magic, and have been 
governed entirely by the apparent similarities. It has been the 
weakness of magic that these mental associations have been with 
respect to superficial resemblances which have not necessarily 
involved any causal relations. 

Religious methods have been and are of such a nature as to 
persuade the alleged spiritual beings; that is to say, they are 
propitiatory methods. These methods have included prayer, 
oblations and sacrifices of all sorts, and adulation in various 
forms of ceremonial worship. Like magic religion also has 
grown in large part out of mental associations with respect to 
superficial resemblances. Man has assumed, because of ex- 
ternal resemblances between occurrences caused by man or by 
other animate beings and the other events which take place in 
nature, that these natural events are caused by spiritual beings 
similar to animate beings. But religion has one great ad- 
vantage over magic which has enabled it to survive magic, and 
which may enable it to persist as long as mankind survives. 
This advantage is that the repeated failure of religious methods 
does not in itself discredit religion, for it is always possible to 
assume that the god or gods are unwilling to grant the re- 
quests of man. 

The above paragraphs give a brief and categorical statement 
of the nature of magic and religion. It is obviously impossible to 
discuss here all of the complicated questions involved in the 
study of magic and religion. But it is necessary to have at least 
a general notion of their nature in order to be able to understand 
the important part they have played in social control in general 
and in penal treatment in particular. 1 This is especially true 

1 Cf. J. G. Frazer, Psyche's Task, A discourse concerning the influence of 
superstition on the growth of institutions, 2d ed., London, 1013. 

In this book Frazer gives numerous examples of the ways in which reli- 



1 8 CRIMINOLOGY 

with respect to primitive peoples, for we shall see that magic and 
religion have played a very important part, perhaps a pre- 
dominant part, in determining the character of the first crimes. 

Influence of Moral Ideas upon the Evolution of Crime 

With regard to the influence of moral ideas in determining the 
character of the first crimes, it is impossible to speak with as 
much certainty. This is due partly to the fact that it is difficult 
to define moral ideas and morality. This is a question which I 
shall discuss in Chapter XXIII. Furthermore, it is difficult fre- 
quently to disentangle moral from religious and magical ideas, as, 
for example, to determine whether an act is forbidden because 
it is wrong in itself or because it is displeasing to a spiritual being. 1 
Some writers have believed that the earliest crimes were deter- 
mined only by religious and magical ideas, and that, moral ideas, 
in the strict sense of the term, had no influence until later. 2 

gious and magical ideas have served as means of social control. He sum- 
marizes his study in the following words : — 

"To sum up this brief review of the influence which superstition has exer- 
cised on the growth of institutions, I think I have shown, or at least made 
probable: — 

"I. That among certain races and at certain times superstition has 
strengthened the respect for government, especially monarchical govern- 
ment, and has thereby contributed to the security of its enjoyment: 

"II. That among certain races and at certain times superstition has 
strengthened the respect for private property and has thereby contributed 
to the security of its enjoyment : 

"III. That among certain races and at certain times superstition has 
strengthened the respect for marriage and has thereby contributed to a 
stricter observance of the rules of sexual morality both among the married 
and the unmarried: 

"IV. That among certain races and at certain times superstition has 
strengthened the respect for. human life and has thereby contributed to 
the security of its enjoyment." (P. 154). 

I think that Frazer exaggerates the value of this kind of social control and 
underestimates the harm which has been caused by superstition. 

1 Cf. C. S. Wake, The Evolution of Morality, London, 1878, Vol. I, pp. 
293-4. Speaking of various acts which are punished among primitive peo- 
ples, Wake says: "It would be a mistake, however, to suppose that actions 
which such peoples declare to be punishable as crimes, are so treated be- 
cause they are thought to be 'immoral,' as we understand the term." This 
author, however, does not seem to realize that many of these acts are pun- 
ished as offenses against magical and religious ideas. 

2 Cf. H. Oppenheimer, The Rationale of Punishment, London, 1913, p. 91. 



THE ORIGIN AND EARLY EVOLUTION OF CRIME 1 9 

These, then, apparently are the factors which determined the 
first crimes. Custom doubtless was the earliest and the most 
important factor. Later appeared magic and religion to give 
their sanction to certain customs, and thus to strengthen these 
customs, to modify other customs, perhaps to suppress some 
customs, and to found some entirely new customs. Moral ideas 
also may have played a part as early as magic and religion. 

The Earliest Crimes 

Steinmetz, as a result of an extensive survey of crimes and 
punishments among primitive peoples, has prepared the follow- 
ing catalogue of "crimes first punished by the community": — 1 

1. Witchcraft. 

2. Incest. 

3. Treason. 

4. Sacrilege. 

5. Miscellaneous offenses, most of which are offenses against 
sexual morality, but including also poisoning, breaches of the 
hunting rules, etc. 

Oppenheimer has rearranged this catalogue as follows: — 2 

1. Treason. 

2. Witchcraft. 

3. Sacrilege and other offenses against religion. 

4. Incest and other sexual offenses.. 

5. Poisoning and allied offenses. 

6. Breaches of the hunting rules. 

In studying these crimes among primitive peoples it must be 
constantly borne in mind that since these peoples do not possess 
the art of writing, and since the state has not as yet evolved for 
them, a penal code, a code of criminal procedure, courts of public 
justice, in other words, law and its mechanism in the formal 
sense of those terms, cannot exist amongst them. Many acts 
which in civilized communities are punished by the law are in 

"It was under the aegis of religion that the criminal code was born. In 
a subordinate way other factors may have helped its seeds to sprout; it 
remains nevertheless true that it is religious thought, religious fears and 
feelings which public punishment has to be fathered upon." 

1 S. R. Steinmetz, Ethnologische Studien zur ersten Enhvicklung der Strafe, 
Leiden, 1894, 2 vols. 

2 H. Oppenheimer, op. cit., p. 71. 



20 CRIMINOLOGY 

primitive communities subject to private revenge. For exam- 
ple, killing is usually reacted against by retaliation on the part of 
the family of the victim. In a sense these acts also are crimes in 
the primitive community, for private retaliation is sanctioned 
by the public opinion of the community and is even expected by 
it, so that failure to exercize such retaliation would be regarded 
as indicating, to say the least, cowardice, if not graver culpabil- 
ity. On the other hand, these acts are not reacted against by 
the community as a whole, so that in this sense they cannot 
be regarded as crimes. 

The offenses catalogued above are crimes in the sense that 
they are punished by the community as a whole. While there 
is no written law on the subject, it is clearly understood in the 
community that such acts are to be publicly punished. When- 
ever a member of the group has committed or is suspected of 
having committed such an act, an investigation or ceremony is 
held to determine the facts, which is a sort of rude prototype of a 
trial by a court of public justice. This primitive judicial process 
may be the gathering of evidence from witnesses by the elders of 
the group, or it may be an ordeal inflicted upon the suspected 
person, or it may be an incantation performed by a magician 
which is supposed to reveal the truth. When the accused person 
has been found guilty by one or more of these methods, appro- 
priate punishment is imposed upon the culprit by the group as a 
whole or by its authorized agents. I shall describe primitive 
punishments later in connection with the study of penal treat- 
ment. 

Treason is most likely to occur in connection with war. If 
the group, whether it be a horde, a clan, or a tribe, is at war with 
another group, and one of its members aids and abets the enemy, 
or even merely refuses to fight, he is punished for this crime 
which menaces the integrity and survival of the group. The 
nature of treasonable acts varies according to the organization 
of the group and the character of the environment. 

Oppenheimer says that "witchcraft is probably the first in 
point of time, and certainly the most universal, of all primitive 
crimes." * It is doubtful if witchcraft as a crime is any earlier 
or any more universal than treason. However, it is certain that 
since a very early time, and almost if not quite universally, the 
1 H. Oppenheimer, op. ciL, p. 73. 



THE ORIGIN AND EARLY EVOLUTION OF CRIME 21 

practise of magic has been punished. But this does not mean 
that all magical practises have been punished. Magic may be 
divided into the so-called "white" and " black" magic. The 
white or good magic is the kind which benefits the group, by 
bringing needed rain, by destroying the enemy, etc. The black 
or bad magic does injury to the group, by blighting the crops, 
by bringing illness, etc. It is this bad magic which is punished 
by the group. Thus it comes about that to be a good magician 
is to merit great rewards from the group, while to be a bad one is 
to suffer severe punishments. Furthermore, to be a magician 
at all is likely to arouse suspicion, for it is impossible for the lay 
public to be certain that the magician is not using his power 
surreptitiously against the public. Hence the persistent sus- 
picion against witchcraft which, as is well known, has lasted 
down to comparatively recent times, even in civilized com- 
munities. 

Sacrilege is the religious correlative of witchcraft as a crime. 
If instead of or in addition to the somewhat impersonal powers 
postulated by magic, spiritual beings of a more personal char- 
acter, such as gods, are assumed to exist, which cannot be coerced 
but can be pleased or offended, then it is greatly to the public 
interest that these beings should be pleased and not offended, for 
otherwise they may wreak divine vengeance upon the group. 1 
Hence it is that those who have committed acts which are sup- 
posed to offend these sensitive deities must be punished, in order, 
if possible, to avert this divine vengeance. 

Incest as a primitive crime may have originated as a violation 
of the rules of exogamy. This explanation is suggested by the 
fact that the scope of forbidden relationships is frequently much 
greater than among civilized peoples. I have not the space to 
discuss the origin of exogamy, whether it is due to an inborn 
aversion to sexual intercourse between near of kin, or to an 
acquired aversion to sexual intercourse between persons who 
have been closely associated with each other during early youth, 
or to some other cause. 2 

, x Thus speaks the Hebrew Yahveh in the Mosaic law to those who offend 
him: — "For I the Lord thy God am a jealous God, visiting the iniquity 
of the fathers upon the children unto the third and fourth generation of them 
that hate me." (Exodus, XX, 5.) 
2 See the discussions in E. Westermarck, op. cit., Vol. II, Chap. 40; His* 



22 CRIMINOLOGY 

The regulation of sexual relations varies greatly among primi- 
tive peoples, as is clearly indicated by numerous facts which have 
been accumulated by the anthropologists. There is variation 
from a high degree of freedom approaching promiscuity to 
strict regulation. However, on the whole it seems to be true 
that there is little sexual morality in the civilized sense of the 
term; that is to say, very little regulating of sexual relations be- 
cause they are right or wrong in themselves, as is frequently the 
case in civilization. Adultery, seduction, and rape are more 
likely to be regarded as private than as public wrongs, because 
they are violations of the proprietary interests of husbands and 
fathers. And even when these and other sexual offenses are 
treated as public wrongs, it is likely to be for religious and 
magical reasons. It is frequently believed that there is a causal 
relationship between sexual acts and the success of the group 
in warfare, hunting, etc. In fact, a great deal of magic and 
religion has centered about sex not only among primitive peoples 
but in civilization as well. This is doubtless due to the myste- 
rious character of sex to those who have no scientific knowledge 
of its nature, because of the strange and powerful feelings it 
arouses, and because of the inexplicable physiological processes 
with which it is connected, especially in the female sex in con- 
nection with menstruation and reproduction. 1 

tory of Human Marriage, London, 1894, Chaps. XIV, XV; and in J. G. 
Frazer, Totemism and Exogamy, London, 1910, 4 vols. 

1 Cf. H. Oppenheimer, op. ciL, p. 85. "The close association which exists 
between our sexual life and the religious side of our nature is so well known 
to the student of the history of religious worship, to the psychologist and 
to the alienist that it cannot cause surprise if offence against sexual morality 
bear from the beginning a religious aspect.. Indeed not until comparatively 
recent times in Christian countries have they ceased to fall within the special 
province of ecclesiastical jurisdiction. Again, the sensations and emotions 
to which the reproductive instinct gives rise, and the phenomena connected 
with its satisfaction are full of mystery to the civilized no less than to the 
savage, and at primitive stages of human thought magic properties are 
attributed to what is otherwise unaccountable in the experiences of the 
inner life, no less than to strange phenomena in the outside world. No 
wonder then tha t the rules relating to marriage are regarded as particularly 
sacred and that sexual relations between persons not allowed to intermarry 
are treated as offences of a particularly heinous type." 

The mysterious character of the sexual processes, especially in woman, 
for most human beings is well illustrated in the Hebrew religion by the 
magical notion of the uncleanness of sex which was incorporated in that 



THE ORIGIN AND EARLY EVOLUTION OF CRIME 23 

The action of poisons and of curative drugs naturally is 
mysterious to primitive man. Consequently, he is prone to 
attribute their effects to supernatural properties. And if he has 
reason to believe that these properties have been imparted to 
them by magicians, and if their effect is bad as in the case of 
poisoning, then he will regard poisoning and similar offenses 
as black magic and will punish them as such. Hence it is that, 
as Oppenheimer says, ''primitive toxicology is a branch of 
magic," l and that the public punishment of poisoning is due 
not so much to regard for human life as to fear of black magic. 

It is of the utmost importance to the group to maintain the 
hunting rules, because hunting is frequently the main source 
of food. Some of these rules have obvious utility. Other rules 
are manifestly absurd to civilized man, as when incest is pro- 
hibited because it is supposed to interfere with success in hunt- 
ing. Here again magical and religious ideas are having their 
influence. Totemic regulations probably in many cases origi- 
nated as primitive game laws, but later acquired a magical or 
religious character which obscured their original purpose and 
frequently destroyed their utility. 2 

The preceding brief survey of some if not all of the principal 
primitive crimes indicates the origin and early evolution of 
crime. Back of these punitive reactions, both private and 
public, can be discerned fundamental human traits of mind 
and of character, such as the powerful emotion of fear and vari- 
ous instinctive reactions to remove the causes of fear, the power- 
ful emotion of anger and various instinctive reactions to injure 
the object of anger. In the category of public punishments 
can be discerned both errors of commission and errors of omis- 
sion. The errors of commission are due to the persistence of 
customs which are no longer useful, and to the influence of magic 
and religion. The errors of omission are illustrated in the com- 
paratively little protection afforded by primitive public justice 

religion. (See the extraordinary purificatory rites, especially for women, 
prescribed in Leviticus, XII and XV.) In the Christian religion, which was 
derived from Judaism, the magical notion of the uncleanness of sex has been 
combined with and has reenforced the ascetic ideal of propitiating the deity 
by expiation and purification through chastity. (See the Pauline epistle 
I Corinthians, VII.) 

1 H. Oppenheimer, op. tit., p. 88. 

2 Cf. J. G. Frazer, Toiemism and Exogamy, London, 1910, 4 vols. 



24 CRIMINOLOGY 

to human life and limb and to property rights. This lack of 
protection is doubtless due in part to a low regard for human 
life and to a rudimentary development of property rights. But 
I have already stated that offenses against human life and some- 
times also against property are frequently reacted against pri- 
vately with the sanction of the community. 

These offenses which were privately punished later developed 
either into crimes or into torts, thus giving rise to the distinc- 
tion between the criminal and the civil law. Furthermore, 
magical and religious ideas had a considerable influence, as 
they still have, to act as a restraint upon these offenses spon- 
taneously without regard to private or public punishment, 
because of the automatic consequences feared from the viola- 
tion of these ideas. In this fashion the taboo system has been 
a powerful restraining force because of the dire consequences 
feared from any breach of the taboo. * 

1 See, J. G. Frazer, Psyche's Task, also The Golden Bough, especially the 
volume entitled Taboo and the Perils of the Soul, London, 191 1; Hutton 
Webster, Influence of Superstition on the Evolution of Property Rights, in the 
Am. Jour, of Sociology, Vol. XV, No. 6, May, 1910, pp. 794-805. 



CHAPTER III 
CRIME AND SOCIAL CONTROL 

The struggle for existence — The conflict between individual and social in- 
terests — Forms of social control: habit, custom, public opinion, reli- 
gion, magic, the state, government, and law — Social utility the cri- 
terion for social control — The limits of social control — The charac- 
teristic features of crime — The definition of crime — Crimes created 
by religious, despotic, and class legislation — Vicious acts stigmatized 
as criminal: acts penalized in order to stimulate public opinion against 
them — The distinctive traits of the criminal class. 

All forms of behavior come into being, in the first instance, 
in the course of the struggle of the individual for existence. 
Each individual must overcome the difficulties in the way of its 
existence if it is to survive. It must secure the food it needs, 
it must not succumb to the climate, it must defend itself against 
its enemies. The individuals which act in such a way as to 
attain these ends will survive, while those who fail to do so will 
be eliminated. So that there takes place a selective process in 
the course of which some individuals survive and are perpet- 
uated, while other individuals are eliminated. In this fashion 
the struggle for existence determines what forms of behavior 
are to persist. 

The Conflict Between Individual and Social Interests 

In every social group conflict arises between the interests 
of the individual and the welfare of the group. Every person 
experiences impulses and desires which if gratified would injure 
other persons, and would give rise to continual warfare which 
would prevent social organization. These impulses and desires 
arise out of the instincts and emotions, which are the principal 
factors in the determination of human behavior. 

These instincts and emotions lead sometimes to social and 
sometimes to anti-social behavior. For example, the instinct 
of pugnacity and the emotion of anger are continually giving 



26 CRIMINOLOGY 

rise to acts of violence. These acts are usually injurious to 
society, though sometimes they are committed in the defense 
of society. Sexual impulses also sometimes give rise to acts of 
violence which are anti-social in their character. But the sexual 
impulses usually arouse a tender emotion which stimulates 
sympathetic feelings and frequently leads to acts of kindness. 
The parental instincts and emotions cause numerous altruistic 
acts of self-sacrifice, and are therefore powerful social forces. 
But, on the other hand, these instincts and emotions sometimes 
lead to anti-social acts, as when a parent does injury to many 
persons in behalf of his or her offspring. In similar fashion 
many other instincts and emotions under certain conditions 
lead to social behavior, and under other conditions lead to anti- 
social behavior. Some of these dynamic forces lead more fre- 
quently to social behavior, and other forces lead more frequently 
to anti-social behavior. But every human trait may be mani- 
fested either in a social or in an anti-social manner. 

Social groups like individuals are engaged in a struggle for 
existence. It goes without saying that the survival of individ- 
uals is of primary importance, for without individuals there 
could be no groups. But in every social or partially social 
species the survival of the individual depends in part upon the 
survival of the group to which it belongs. Consequently, the 
behavior of the members of the group must in the long run 
promote the survival of the group. Thus it is that social in- 
stincts, sympathetic feelings, and intellectual activities which 
are socially directed tend to be preserved and encouraged in 
the social struggle for existence. On the other hand, anti- 
social instincts and feelings, and intellectual activities which 
are anti-socially directed, tend either to be eliminated, or, when 
too deeply rooted in human nature to be eliminated, to be re- 
strained. 

Forms or Social Control 

This control of anti-social tendencies in most individuals 
comes in part from within. Some of the traits in human nature 
exercize a restraining influence over the anti-social tendencies 
of the other traits. For example, the sympathetic feelings may 
ameliorate somewhat the tendency to do injury to others which 
is encouraged by the pugnacious instinct. But this internal 



CRIME AND SOCIAL CONTROL 27 

control frequently is not sufficient, giving rise to the need for 
an external control. Consequently, many forms of social con- 
trol have developed in human society. 1 

Habit is a very important form of control in society. It is 
true that habit is apparently an internal and not an external 
form of control. But even though each habit belongs to an 
individual and is formed by him, nevertheless habit is a form 
of social control, because the character of the habits formed 
depends largely upon social influences. In organized society 
many habits are drilled into individuals, so that the formation 
of habits is an important means of social control. 

Custom is another important means of social control. 2 Cer- 
tain customs are also the habits of many individuals. Thus 
in our own society the customary ways of eating food with 
knives and forks are also the habitual ways of the great major- 
ity of persons, because the acts involved are repeated so fre- 
quently as to become habitual. But other customs do not in- 
volve habits, because the customary acts involved are not 
repeated so frequently as to become habits. For example, 
in our society it is customary to marry. But it can hardly be 
said to be habitual, because the great majority of individuals 
do not marry more than a very few times at most, Custom 
brings about uniformity of behavior in matters in which uni- 
formity is essential or, to say the least, desirable. Thus it is 
well to have a custom on the public highway that vehicles shall 
always pass to the right or always to the left, for otherwise 
there would be a good deal of disorder. But, as we shall see, 
custom also does injury to society by causing an excessive de- 
gree of uniformity, and by obstructing desirable changes.' 

Public opinion exists when the majority of a group have the 
same definitely formulated opinion about a certain matter, or, 
at any rate, when the majority of those who have a definite 
opinion agree. When public opinion concerns matters of con- 
duct it frequently has a powerful coercive influence. In many 
cases an individual will suffer bodily injury when he acts con- 
trary to the public opinion of the group to which he belongs. 

1 Some of these forms of social control are graphically described in E. A. 
Ross, Social Control, New York, 190 1. 

2 Cf. W. G. Sumner, Folkways, A Study of the Sociological Importance of 
Usages, Manners, Customs, Mores, and Morals, Boston, 1907. 



28 CRIMINOLOGY 

But even when bodily injury is not inflicted, he will usually 
experience mental discomfort which will deter him from acting 
contrary to public opinion. 

Public opinion is closely related to custom. Some customs are 
due to public opinion as to how certain things should be done. 
On the other hand, many customs become established first, and 
then give rise to public opinion. It is impossible to ascertain 
which comes first in the majority of cases. However, it is 
probable that usually the custom becomes established without 
any conscious forethought, and then public opinion follows as an 
attempt to rationalize the customary mode of conduct. 

When public opinion with regard to matters of conduct be- 
comes strong, and involves the belief that certain forms of con- 
duct are right and other forms are wrong, there arise moral 
ideas. These ideas have a powerful restraining force, because 
violations of them usually bring in their train penalties of various 
sorts. I shall describe the nature of moral. ideas in Chap- 
ter XXIII, and a considerable portion of this book is devoted 
to describing penalties imposed upon violations of these moral 
ideas. 

Religion frequently plays an influential part in regulating 
human conduct. Its representatives teach and preach the 
existence of powerful spiritual beings which desire and com- 
mand men to act in specified ways, and assert that if men do not 
act accordingly they are liable to suffer severe penalties. To 
the extent that religious doctrines are believed they will in- 
fluence the conduct of men. Furthermore, religious organiza- 
tions such as the churches have been formed which have in 
many cases acquired a vast amount of power over the actions of 
men. The rules of conduct specified by religion frequently are 
the same as those which have already been developed by public 
opinion and have become moral ideas. When moral ideas and 
religious beliefs are identical religion gives support to the ac- 
cepted standard of morality. Sometimes, however, the religious 
rules of conduct come from other sources. 

Magical ideas also have played a part similar to that of 
religion in the earlier stages of social evolution, and still have 
much influence among primitive peoples and among the igno- 
rant classes in civilized countries. Magic resembles religion in 
its belief in the existence of spiritual beings, but differs some- 



CRIME AND SOCIAL CONTROL 2Q 

what from religion in the measures it uses to influence these 
powers. In either case human conduct is regulated with refer- 
ence to the alleged nature and desires of these spiritual beings. 1 
All of the means of social control so far mentioned existed in 
the earlier stages of social evolution. But there was usually no 
highly organized mechanism for putting them into effect. Fre- 
quently they were manifested through individuals who were 
wreaking personal vengeance for injuries done to themselves or to 
their relatives, but who were at the same time giving expression 
to the public opinion, customs, moral ideas, religious beliefs, and 
magical ideas of their group. The earlier forms of social or- 
ganization, such as the tribe, had a rude mechanism for ad- 
ministering these means of social control. 2 A highly organized 
mechanism came into being with the evolution of the state and 
government. Government usually operates through law. Law 
is based in large part upon custom, public opinion, moral ideas, 
religion, etc. But the state through its government has special 
means for enforcing its laws. As a matter of fact, all forms of 
social control are eventually expressed to a considerable extent 
through the law and its enforcement. The most drastic and 
coercive part of the law is the criminal or penal law, and the acts 
prohibited by this branch of the law are crimes. 

The Limits of Social Control 



The forms of social control briefly described above and others 
which might be mentioned furnish the restraint upon the anti- 
social tendencies of the individual which is essential for the 
preservation of society. Utility for the survival of society is in 
the long run the determining factor with respect to these forms 
of social control, just as it is the ultimate determining factor 
throughout the struggle for existence. But the conditions which 
determine the criterion of social utility change continually, so 
that the forms of social control must change accordingly. Forms 
of social control which are suitable for one type of social grouping 
may not be suitable for another type, and may even lead to its 

1 Cf. J. G. Frazer, Psyche's Task, A discourse concerning the influence of 
superstition on the growth of institutions, 2d ed., London, 1913. 

2 See G. C. Wheeler, The Tribe and Intertribal Relations in Australia, 
London, 1910. 



30 CRIMINOLOGY 

destruction. So that forms of social control change greatly from 
time to time and from one group to another. 

It happens frequently, however, that forms of social control 
which no longer have social utility, sometimes indeed which 
have never had social utility, will persist for a time, even though 
they are doing injury to society. But this can happen only 
when they are not fatal in their effects, for otherwise they would 
destroy the social group. And we have reason to believe that 
many social groups have been destroyed by injurious forms of 
social control. Religion and despotism, sometimes each by 
itself, but frequently in unison, have at many times and places 
developed excessively drastic forms of social control which 
have been very injurious to a large part of the membership of the 
group. When this has been due to despotism, it has been in the 
interest of a few at the expense of the many. When it has been 
due to religion, it has resulted from the influence of beliefs to the 
effect that the spiritual beings feared by man demanded these 
drastic measures. When the two have worked in unison, the 
despot has usually been regarded as representing in some man- 
ner the spiritual beings, and therefore delegated to enforce the 
wishes of these beings. Despots have frequently found it useful 
to reenforce their own secular authority with this supernatural 
sanction. Examples of excessive forms of social control will be 
mentioned presently. 

Hence it is that there are two aspects to the problem of social 
control and regulation. On the one hand, there must be enough 
control to preserve society against the anti-social tendencies of 
its individual members. On the other hand, for two reasons 
there should not be too much control. In the first place, an 
excessive amount of social control may lead to the destruction of 
the group itself, because of the injury it does to its members. 
But even when it does not destroy the group, more control than 
is essential for social survival is bad, because it limits the liberty 
of individuals unnecessarily. The restriction of individual 
liberty is a necessary evil so far as it is essential for social sur- 
vival. It becomes an unnecessary evil when it is carried beyond 
this point. Individual liberty and social control always have 
been and always will be in conflict with each other to a certain 
extent, and it is one of the greatest of human and social problems 
to harmonize them. 



crime and social control 3 1 

The Characteristic Features and Definition of Crime 

The most obvious feature of crime is that it is created by the 
law and is penalized by the law.: The great majority of criminal 
acts are sins of commission. They are acts forbidden by the law 
on pain of punishment. Some crimes, however, are sins of omis- 
sion. Such a crime is the failure to perform an act required by 
the law. 

However, the legal definition of crime is hardly broad enough 
for our purpose, because the crimes which the law has desig- 
nated have varied greatly from time to time and from place to 
place. We must distinguish features which have been more or 
less characteristic of crimes in general at all times and places. 

It has generally been true that criminal acts have also been 
immoral acts. There are, however, occasional exceptions to this 
rule. Furthermore, the great majority of immoral acts are not 
criminal, so that it would be impossible to identify a crime by its 
immorality alone. Since they are immoral acts, crimes are 
almost universally recognized as wrong and as harmful to 
society. They usually include a considerable portion of the 
more serious immoral acts. Hence crimes are, generally speak- 
ing, the more serious of the anti-social acts, and are sometimes 
called the major anti-social acts. 1 

It is also true of crimes that usually they are acts of such a 
nature that it is more or less practicable to repress them. They 
are ordinarily acts which affect other persons directly. Conse- 
quently, it is usually known when they have been committed, 
and the injured persons are as a rule anxious to have the crim- 
inals punished. These persons are therefore ready to help the 
agents of the law to apprehend the criminal and to convict him 
of crime. 

Furthermore, a crime usually is an anti-social act of such a 
nature that its repression is necessary or is supposed to be neces- 
sary to the preservation of the existing system of society. In 
other words, crimes are supposed to include the anti-social acts 
which are of life-or-death importance to the existing society, 
but may not include many acts which, while they are harmful 
socially, are not of such grave importance. As we have already 
seen, forms of behavior which might be fatal to one type of 

1 Cf. Havelock Ellis, The Task of Social Hygiene, London, 191 2, Chap. IX. 



32 CRIMINOLOGY 

society would not necessarily be fatal to another type of society, 
and might even be beneficial to it. This fact explains in part 
the differences between one society and another in the kinds of 
acts which are stigmatized as criminal. 

Crime may, therefore, be defined as follows: A crime is an 
act forbidden and punished by the law, which is almost always im- 
moral according to the prevailing ethical standard, which is usually 
harmful to society, which it is ordinarily feasible to repress by penal 
measures, and whose repression is necessary or is supposed to be 
necessary to the preservation of the existing social order. 

Crimes Created by Religious, Despotic, and Class 
Legislation 

I have already indicated that acts have frequently been 
stigmatized as criminal for religious or magical reasons. The 
prototype of this kind of social repression exists among savage 
peoples in the form of taboo. If a savage believes that it will 
be displeasing to a spiritual power for him to commit a certain 
act, he will refrain from doing it in order to avoid the vengeance 
which the spiritual power would otherwise wreak upon him and 
the group to which he belongs. Or the savage may not per- 
sonify the spiritual power to this extent, but may believe that 
its automatic reaction to his act will be of such a nature as to 
do him injury. But if he does commit this act, his group is 
very likely to wreak vengeance upon him for thus endangering 
the welfare of the group, and this vengeance constitutes a 
primitive form of punishment. To an outsider it will frequently 
be obvious that the observance of the taboo is doing the individ- 
ual and his group far more harm than its violation. But to the 
believer in a spiritual power of such a nature it will be perfectly 
reasonable to regard the violation of the taboo as immoral and 
criminal. 

The same principle holds throughout every religion. No 
religion which has acquired a considerable following has failed 
to make criminal at law some at least of the acts which its tenets 
forbade. The history of our own occidental civilization is. par- 
ticularly rich in these instances, owing to our inheritance from 
the Hebrew theocracy. The Hebrew Yahveh was a stern and 
vengeful god. Consequently, the Hebrew religion and law 
regarded it as man's duty to punish offenses against God in 



CRIME AND SOCIAL CONTROL 33 

order to avert divine vengeance inflicted by the Hebrew deity. 
The Christian religion borrowed this idea along with much 
of the Hebrew religion. Consequently, the severity of the 
penal law among many Christian nations is to be explained in 
part by the fact that crimes have been punished not only as 
anti-social acts, but also as violations of divine law. Many 
examples of this may be found near at hand. During the Colo- 
nial days the Blue Laws of Connecticut furnished good examples. 
Much of the Sabbatarian legislation of the present day is of the 
same origin. 

Religion has frequently condemned on religious grounds an 
act which was already regarded as immoral, thus adding a super- 
natural sanction to the prohibition already existing against the 
act. In this manner religion has been a force for morality and 
the "maintenance of society. But in other cases religion has 
condemned and has succeeded in making criminal many acts 
which could on no other ground be regarded as harmful. In 
our own recent history the puritanical nature of much of the 
religious teaching condemned and made criminal many forms 
of amusement which are now generally regarded as innocent 
and beneficial. 

Whenever religion succeeds in stigmatizing as criminal acts 
which are not regarded as objectionable in any other way, most 
of the general characteristics of crime mentioned above do not 
apply. These acts usually do no harm to individuals or to 
society, they are not generally regarded as immoral unless the 
professional religionists succeed in educating public opinion 
to the point of thinking so, and their repression is not needed 
for the preservation of the existing system of society. Fre- 
quently also they are acts which it is not feasible to repress 
by penal measures. 

As I have already indicated, there has been a good deal of 
penal legislation in the interests of despots. Much of the legis- 
lation concerning monarchs and royal families has been of this 
nature. For example, in the ancient English law many of the 
acts made treasonable by the law were acts directed against 
the royal family, but which would not necessarily have done 
any injury to society at large. Such legislation still exists in 
certain countries in the form of laws penalizing acts of Use 
majeste. As the power of the kingship has declined, the extent 



34 CRIMINOLOGY 

of such legislation has lessened. It has been encouraged in the 
past by the divine traits which have been attributed to kings, 
and which have not yet been entirely forgotten. This belief 
in a relationship between kings and divinity has arisen out of 
the fact that the kingship and godhood have in part the same 
origin in the minds of men. * 

But there has probably been even more penal legislation in 
the interests of classes. Whenever a class has succeeded in 
gaining the ascendancy politically, economically, or otherwise, 
it has invariably enacted more or less penal legislation in its 
own interest. At various times and places the military class, 
the landholding class, the capitalist class, has passed legislation 
in its own favor. When the feudal barons in Europe attained 
the supremacy, they created laws penalizing the peasants who 
tried to leave their land, thus making the workers on their land 
practically their slaves. Up to the last century in England 
poaching was severely punished, because this was a violation 
of the vested rights of the landowning aristocracy. Today noth- 
ing is more jealously safeguarded by the law than the prop- 
erty rights of capital. 

It is evident that crimes created by despotic and class legis- 
lation do not conform in the main to the characteristics of crime 
described above. The acts penalized by such legislation usually 
do not injure society outside of the small group in whose interest 
the legislation has been passed, they are frequently not re- 
garded as immoral by the public at large, and their repression 
may not be necessary for the preservation of the existing so- 
ciety. In the past there has been a vast amount of sumptuary 
legislation regulating sometimes in great detail the life of the 
public at large at the will of the despot or of the ruling class. 
Religion has also played an important part in determining 
the character of sumptuary legislation. 

Vicious Acts Stigmatized as Criminal 

An act is sometimes stigmatized as criminal on the ground 
that it is vicious, even though it does not conform in the main 

1 For numerous examples of religious and despotic penal legislation see 
E. Westermarck, The Origin and Development of the Moral Ideas, London, 
1906, Vol. I, Chap. 7. 



CRIME AND SOCIAL CONTROL 35 

to the general characteristics of crime mentioned above. It 
is an act which is or is supposed to be harmful to society, but 
which does no harm to any one directly, and which can fre- 
quently be carried on in secret with little fear of detection. 
In this country at present there is a strong tendency to penalize 
acts which are regarded by the public at large as vicious, as, 
for example, gambling, drunkenness, extra-marital sexual rela- 
tions, etc. This situation raises the practical question as to 
whether it is feasible to repress vicious acts by penal means, 
and, if these laws are certain to become dead letters, whether 
it would not be preferable to use indirect means to attain this 
end. I shall discuss this problem in Chapter XXI. 

Still another ground upon which acts are sometimes penalized 
is in order to stimulate public opinion against these acts. This 
has been done in the past for various reasons, as, for example, 
for religious reasons. It is often done nowadays in the interests 
of public sanitation, public safety, etc. There are many acts 
which do not injure any one directly and apparently have no 
evil results, and yet which cause much harm. On account of 
their apparent innocuousness there is no public sentiment 
against these acts. They may not even be regarded as vicious, 
much less as deserving penal treatment. But when their dan- 
gerousness is discovered the government may prohibit these 
acts, in the first place, to call attention to their harmful char- 
acter, and, in the second place, to discourage people from com- 
mitting them. An example of this sort of legislation is the law 
against spitting on the sidewalk. Until scientific research had 
revealed the fact that tuberculosis and other diseases are spread 
by germs in the sputum the dangerousness of such a practise 
was not recognized. Since this discovery was made this act 
has been forbidden by the law in many places. The complicated 
life of our modern civilization, especially under the urban con- 
ditions of a large city has made many kinds of conduct socially 
harmful which otherwise would not be harmful, and has led 
to much legislation of this sort. Here again the practical ques- 
tion may be raised as to the advisability of dealing with these 
acts by means of penal methods, or as to whether indirect 
methods would not be preferable. 

We can now see that there have been and still are many 
instances of social control in the form of penal repression which 



36 CRIMINOLOGY 

are not beneficial, and frequently are positively harmful. But 
obviously there is a limit to these instances, because an excessive 
number of them would lead to the destruction of society. In 
the course of social evolution there has taken place a process 
of the selection and survival of the desirable methods of con- 
trol, so that social control has become more and more effective. 
Consequently, penal repression is now inspired not so much 
by blind vengeance as by the desire to secure the deterrence 
from and the prevention of anti-social acts. 

The Distinctive Traits of the Criminal Class 

In the light of the preceding discussion we may expect to 
find at any time and place those persons criminal who are most 
likely to commit the acts stigmatized as crimes at that time 
and place. For this reason it may appear as if every social sys- 
tem should have its own criminal types which would be entirely 
or in the main different from the corresponding types of every 
other social system. But while it is doubtless true that these 
types vary somewhat from one social system to another, yet 
it would be an error to carry this idea too far for the following 
reasons. 

In the first place, certain acts are stigmatized as criminal 
under almost every social system. For example, murder is a 
crime in every civilized community. So that the persons who 
are prone to commit these acts are likely to become criminals 
in almost every community. Furthermore, as communities 
increase in similarity owing to the internationalization of cul- 
ture, their legal and moral codes become more and more alike, 
and consequently their criminal types become more and more 
alike. 

In the second place, inasmuch as the category of acts stig- 
matized as criminal is in most places rather extensive, it is 
difficult for any human being to live for any great length of 
time without committing some of these acts. Consequently, 
in every community there is some criminality diffused through- 
out the public at large, so that the line of distinction between 
the criminal and the non-criminal classes is by no means hard 
and fast. But most persons do not become known and are not 
punished as criminals, either because they do not commit these 



CRIME AND SOCIAL CONTROL 37 

acts with sufficient frequency to attract public notice, or be- 
cause on account of their cleverness or for some other reason 
they are not caught. 

In the third place, we have reason to believe that there are 
certain types of individuals who are very likely to become crim- 
inals under any social system. Several types of human beings 
are prone to violate legal and moral conventions, whatever those 
conventions may be. In every community are to be found in- 
tractable, rebellious, and unadaptable persons who are sure to 
react against any form of social control. In this group it may 
be possible to discern a universal criminal type which is to be 
found in every community. Consequently, while the personnel 
of the criminal class at any time and place is determined in part 
by the kinds of acts which are criminal, it is also determined in 
part, and perhaps in large part, by the traits of this universal 
criminal type. 

We can now discern more clearly several considerations which 
must never be forgotten when studying the criminal class at 
any specific time and place. In the first place, it must always 
be borne in mind that the distinction between the criminal and 
the non-criminal classes is by no means a hard and fast one. 
In the second place, it is doubtless true that the kinds of acts 
which are stigmatized as criminal will determine in part what 
individuals are to become criminal. For example, at a time 
when crimes against the person are rigorously pursued by the 
law, the individuals who are prone to commit acts of violence 
against their fellow beings are likely to become criminals. But, 
in the third place, it is probably true, as I have already stated, 
that certain peculiarities can be distinguished of those who are 
criminal at all times and places. There are several types of 
persons who are always peculiarly prone to violate the legal 
and moral conventions which determine what acts are criminal. 
It is evident that the last condition limits the preceding one, 
and that the criminal class at any time is determined in part 
by what acts are criminal, but perhaps in larger part by traits 
which are more or less universally characteristic of this class. 

I have already stated earlier in this chapter that the elemen- 
tary traits of human nature are the fundamental factors in the 
determination of criminal conduct, as of every other kind of 
conduct. No one of these traits alone causes this conduct. For 



38 CRIMINOLOGY 

example, there is no distinct instinct of crime which makes 
human beings commit crimes. Nor are there any instincts 
which invariably or almost always lead to crime. On the con- 
trary, any instinct may under certain conditions lead to crime, 
while under other conditions it may lead to conduct having 
great social utility. The instincts are the product of a long 
process of evolution, and came into existence long before the 
laws which designate the crimes of today. Furthermore, these 
laws have not been devized by psychologists who were ac- 
quainted with the human instincts and wished to restrain some 
of them. On the contrary, they have been devized by men 
who usually have known nothing whatever about human psy- 
chology, but have wanted to prevent certain kinds of conduct 
which they believed to be socially harmful. Hence it is inac- 
curate to speak of a criminal instinct, or of an instinctive type 
of criminal. 

In similar fashion, there are no specifically criminal feelings, 
but any feeling may under certain conditions lead to criminal 
conduct, while under other conditions it may impel towards 
socially useful conduct. As for the intelligence, when viewed by 
itself it is entirely unmoral in character. It acquires moral 
significance only in connection with the sort of conduct it hap- 
pens to direct. In some circumstances it may direct instincts 
and emotions towards criminal conduct, and in other circum- 
stances towards non-criminal conduct. But the influence of the 
intelligence is probably on the whole against crime, because it 
enables the individual to understand the need and justification 
for social control, and thus makes him more prone to heed the 
law. 

There are, therefore, no peculiar crime factors in human 
nature. As a matter of fact, criminal conduct frequently results 
from the unusual strength of certain normal traits, or from the 
unusual weakness of certain restraining factors in human na- 
ture. Every human being has in him the making of a criminal. 
There are no saints, despite the canonizations of the church. 
In every one are to be found the emotions of anger* and of 
jealousy which frequently lead to murder, the sexual passion 
which sometimes leads to sexual crimes, the germ of avarice 
which leads to various crimes against property, the love of 
pleasure and the lack of foresight which in their extreme forms 



CRIME AND SOCIAL CONTROL 39 

lead to various kinds of criminal conduct. In fact, if any human 
trait is born in a person in unusual strength, or is developed to 
an unusual degree in the course of the lifetime of the individual, 
or is stimulated to an excessive degree under unusual circum- 
stances, it may lead to criminal conduct. In similar fashion, if 
some of the restraining factors in human nature are congenitally 
weak, or if they are not fully developed during the lifetime of the 
individual, or if they are weakened or inhibited under unusual 
circumstances, some of the normal traits may not be prevented 
from causing criminal conduct. 

These facts indicate that no persons are born criminal in the 
sense that they are criminal at birth, or predestined at the time 
of their birth to become criminal. It is, however, convenient 
frequently to speak of several of these types of persons born with 
abnormal traits, which are very likely to lead them into criminal 
conduct, as being congenitally criminal. Criminal conduct is, 
therefore, like every other kind of conduct, the outcome of the 
cooperation of these internal factors in the determination of 
human behavior with the forces of the environment. In order 
to understand the criminality of criminals it is necessary to 
study both these internal factors and the external environmental 
factors. 



PART II 

CRIMINOGENIC FACTORS IN THE ENVIRON- 
MENT 



CHAPTER IV 

PHYSICAL ENVIRONMENT — CLIMATE, SEASON, 
AND THE WEATHER 

Influence of the physical environment in general — Influence of topography 
and the nature of the soil — Influence of climate, the seasons, and the 
weather — Meteorological factors mingled with cultural forces. 

The physical environment has much influence upon criminal 
conduct, as it has upon all other forms of human behavior. In 
one sense it is true that in the long run the physical environment 
is the only factor in the determination of human behavior; for 
it is this environment which has determined the organic evolu- 
tion which has made possible the human species, and this en- 
vironment has also determined the cultural evolution which has 
characterized mankind. But, while recognizing the omnipotence 
of the physical environment in this broad sense, it is desirable in 
an intensive, detailed study of human phenomena to distinguish 
between the influence of the physical environment and the 
organic and cultural factors which have been determined by this 
environment. Some writers have not made this distinction with 
sufficient clearness, and consequently have failed to give due 
weight to organic and cultural factors. 1 

The influence of the physical environment upon criminal 
conduct can be studied in some respects more or less directly, in 
other respects only indirectly. The influence of topographical 
conditions and the nature of the soil is very great, but can be 
studied only indirectly. For example, the population cannot be 
dense in a mountainous or in an arid region. But it is very 
likely to become dense in a fertile river valley, and to become 
highly concentrated in a city located upon a good harbor. In 
similar fashion, the wealth of the population of any region is 
determined in part by the topography and the soil of that region. 

The influence of climate, season, and the weather upon crime 

1 For example, see the able but one-sided work of H. T. Buckle, History of 
Civilization in England, New York, 1903, 2 vols. 



44 CRIMINOLOGY 

can be studied somewhat more directly. This involves the study 
of the temperature, the variations of heat and cold, the relative 
length of the days and the nights, the humidity of the atmos- 
phere, and the movements in the atmosphere in the form of 
winds. Many statistics have been gathered which indicate 
several definite correlations between these telluric conditions 
and the extent and character of crime. 

Influence of Climate 

History shows that the peoples of hot climates have usually 
been less active than the peoples of temperate climates. Civiliza- 
tion has developed largely in the temperate zones, though it is 
probably true that some of the earlier stages in social evolution 
took place in the tropics. In historical times, at any rate, the 
dominant peoples have been those of the temperate zones. 
Excessive heat tends to depress human activity, while moderate 
cold stimulates it. 

There is, however, one effect of heat which tends to increase 
one kind of activity. Excessive heat, and especially a change 
from a moderate to a hot temperature, stimulates the emotions 
and tends to increase irritability, thus leading to acts of violence. 
This fact doubtless explains the fact that crimes against the 
person are almost always more numerous in hot climates than 
they are in cold climates, and more numerous in the warm sea- 
sons than they are in the cold seasons. An additional reason for 
this phenomenon is that with a warm temperature an out-of- 
door life is led which offers more opportunities for many crimes 
against the person, such as assault, rape, etc. . 

Crimes against property, on the contrary, tend to decrease 
with a warmer temperature, and to increase as the temperature 
falls. This is doubtless due in part to the direct effect of the 
cold in stimulating the activity needed for many of the crimes 
against property. But in this case the influence of the tempera- 
ture probably is more indirect than direct. With a warmer 
temperature there is usually a more abundant food supply, less 
need for clothing and shelter, and sometimes more employment, 
while the long nights of winter offer more opportunities for cer- 
tain crimes against property, such as burglary and robbery. 

I shall now cite a few statistics which illustrate these climatic 



PHYSICAL ENVIRONMENT 45 

differences in crimes against the person and crimes against 
property and reveal a correlation between climatic variations 
and the extent and character of crime. The following table 
indicates the proportions between crimes against the person and 
crimes against property in the different parts of France : — * 

Crimes against Crimes against 
the Person Property 

Northern France 2.7 4.9 

Central France 2.8 . : 2 . 34 

Southern France 4.96 2.32 

According to these statistics the proportions between these 
two kinds of crimes become almost directly inverse from the 
northern to the southern part of France. While there are for 
every ioo crimes against the person 181.5 crimes against prop- 
erty in Northern France, there are in Southern France for every 
100 crimes against the person only 48.8 crimes against property. 

The following table furnishes similar statistics for the different 
parts of Italy: — 2 

For each 100,000 inhabitants there occur in 

Homicides, 



Indictments 


Highway Rob- 


Aggravated 


for Crime 


beries with 
Homicide 


Theft 


746 


7.22 


143-4 


862 


15.24 


174.2 


1094 


31.00 


143-3 


1141 


30.50 


195-9 



Northern Italy 

Central Italy 

Southern Italy 1094 

Insular Italy 

This table does not show the inverse correlation between the 
two kinds of crimes as clearly as the preceding table, probably 
owing to the intervention of various economic and other social 
factors. 

Influence of the Seasons 

I shall now cite a few tables which indicate a correlation 
between seasonal fluctuations and crime. The following ta- 

1 R. Mayo-Smith, Statistics and Sociology, New York, 1895, p. 270. These 
figures are taken from statistics gathered by Guerry for the years 18 26-1 830. 

2 C. Lombroso, Crime, Its Causes and Remedies, Boston, 191 1, p. 13. 
Lombroso fails to specify what period of time is covered by these statistics. 



46 



CRIMINOLOGY 



ble shows the relation between sexual crime and season in 
France: — * 

Sexual Crimes in Relation to Season in France. 1827-1869 
(After Ferri, percentages reckoned by Aschaffenburg) 

Sexual Crimes in France. 1827-1869. 

Number of 



On Adults 

Absolute 
Numbers 

... 584 



% 



January 584 7 

February 563 6 

March 643 7 

April 608 7 

May. 904 10 

June i>°43 J 2 

July 860 10 

August 794 9 

September 653 7 

October 532 6 

November 514 6 

December 534 6 

Unknown i,4 2 i 



On Children 

Absolute 
Numbers 
1,106 



1,041 
1,366 
1,700 
2,i75 
2,585 
2,459 
2,208 

i,773 

i,447 

983 

939 

16,160 



% 

5-57 

5-24 

6.88 

8.56 

10.95 

13 03 

12.42 

11. 13 

8-93 
7.29 

4-95 
5-05 



Conceptions 
1863-1871 
Absolute 
Numbers 

2,603 

2,661 

2,608 

2,887 

3,060 

3,018 

2,911 

2,742 

2,810 

2,625 

2,620 

2,665 



% 
7.84 
02 

85 
69 
21 

08 
76 
25 
46 
91 



This table shows clearly that these crimes increased greatly 
during the warmer months, reaching their maximum in June. 
This is probably due in part to a periodicity in the sexual life 
of man which appears to reach its apogee in the spring or early 
summer, and which was doubtless caused originally by seasonal 
changes. It is also due in part to the out-of-door life of the 
warmer months. But it is doubtless due to a. certain extent to 
the erotic stimulation of heat. 

It is interesting to compare the figures for these crimes with 
the figures for the days of conception during a period of years 
which are given in the same table. These figures indicate a slight 
increase in the number of conceptions during the warmer months 
which reach their maximum in May. This suggests the possible 
existence of the sexual periodicity mentioned in the preceding 
paragraph. 

1 Rearranged from G. Aschaffenburg, Crime and Its Repression, Boston, 
1913, p. 16. The figures are taken from E. Ferri, Das Verbrechen in seiner 
Abhangigkeit von dem jahrlichen Temperaturwechsel, p. 38; Studi sulla crim- 
inals td ed altri saggi, p. 81. 



PHYSICAL ENVIRONMENT 47 

The following table shows the seasonal distribution of crim- 
inality in Germany: — : 

The Criminality of Germany Distributed According to the Year 
and Month when the Crimes Are Committed 

If there are 100 offenses per day in the year, there are per day in the month 

Kind of Crimes and 

Offenses Jan. Feb. March April May June July Aug. Sept. Oct. Nov. Dec. 
Crimes and offenses against 

national laws 95 97 90 92 99 103 105 109 105 103 103 98 

Resisting officer 89 94 89 94 97 104 109 117 112 104 99 90 

Breach of the peace 94 99 96 100 98 101 105 no 106 102 100 89 

Rape 64 66 78 103 128 144 149 130 108 90 68 69 

Obscene acts, distribution 

of obscene literature ... 62 74 83 101 130 150 141 133 109 84 69 64 

Insult ("Beleidigung")... 83 89 85 93 108 115 120 122 113 99 93 80 

Infanticide 89 127 127 121 118 102 95 80 91 86 82 87 

Simple assault and battery 76 80 79 95 108 116 124 134 121 102 88 74 
Aggravated assault and 

battery 75 78 78 95 108 113 118 133 124 106 93 78 

Crimes against property. .109 108 96 90 93 93 92 93 93 104 113 117 
Petit larceny, also when 

repeated 113 115 98 85 87 88 88 92 92 106 117 121 

Grand larceny, also when 

repeated 102 .107 92 89 94 98 98 94 96 106 112 111 

Embezzlement 100 97 94 94 98 100 103 101 98 104 105 108 

Fraud, also when repeated. 112 108 95 88 92 92 92 93 90 88 102 121 

Malicious mischief 88 92 98 108 109 106 104 104 103 101 99 88 

This table is based upon the criminal statistics for the period 
from 1883 to 1892. It shows clearly that the maxima for all of 
the crimes against the person, except infanticide, during this 
period came during the warmer months, while all of the maxima 
for the crimes against property came during the colder months. 

The above tables contain only a small part of the vast mass of 
statistics which have been gathered with respect to the influence 
of climate and season upon crime. But there is an important 
exception to the usual form of this influence. Statistics have 
been gathered which indicate that in tropical countries crimes 
against the person do not increase during the warmer seasons, 
as happens in the countries in the temperate zones. In tropical 
countries the temperature is high the year around, but becomes 
excessively high during the warmer seasons, thus tending to 
depress activity of all kinds, even acts of passion and violence. 
Furthermore, there is some reason for believing that in tropical 
countries crimes against property do not increase during the 
cooler seasons over their number during the hotter seasons to 
the same extent that they increase in the countries of the tem- 

1 G. Aschaffenburg, op. ciL, p. 17. Taken from the Statistik des Deutschen 
Rcichs, Neue Folge LXXXIII, IE, p. 52. 



48 CRIMINOLOGY 

perate zones. If this is true, it is probably due in large part 
to the fact that there is not so much variation in human needs 
between the hotter arid the cooler seasons in the tropics as there 
is in the temperate zones. 1 

Influence of the Weather 

In addition to the temperature there are other conditions 
which go to make up what is ordinarily called the weather which 
doubtless have some influence upon crime. Among these are 
atmospheric pressure, winds, humidity, sunshine, rain, and 
cloudiness. Unfortunately the influence of these conditions has 
not been studied very much as yet. One of the best studies of 
this sort was made by Dexter 2 of the influence of the weather 
upon a number of kinds of crime in New York City, the results 
of which he compared with the results of a similar study which 
he made in Denver. To the results of these studies he tries to 
give a physiological and psychological explanation. 

Dexter compared the record of arrests for assault and battery in 
New York City, these arrests numbering about forty thousand, during 
the years 189 1-7, with the meteorological conditions during the same 
period. He found 3 that the number of arrests increased quite 
regularly with the rise in temperature, which led him to the conclusion 

1 Corre has made an intensive study of the relation between temperature 
and crime in the island of Guadeloupe in the West Indies. He formulates 
the law of this relation in the following terms : — 

"II existe une connexion plus ou moins etroite entre la marche de la tem- 
perature et celle du crime, dans les divers milieux; 

"Dans les pays froids ou temperes, c'est a, dire a saisons bien tranchees, 
la chaleur parait agir comme agent stimulant: le crime croit avec elle en 
intensite. 

"Dans les pays chauds ou a, saisons peu tranchees, la chaleur parait agir 
inversement, et c'est quand elle presente une diminution dans ses moyennes, 
en meme temps que les plus forts ecarts entre ses extremes, que les crimes 
augmentent; le maximum de la criminalite coincide avec les minima thermi- 
ques." (A. Corre, Facteurs generaux de la criminalite dans les pays Creoles, 
in the Arch, d'anth. crim., Vol. IV, 1889, p. 165.) 

2 E. G. Dexter, Weather Influences, An empirical study of the menial and 
physiological effects of definite meteorological conditions, New York, 1904; 
Conduct and the Weather, Monograph Supplement, No. 10, The Psychological 
Review, May, 1899. See also several articles by the same author. in various 
scientific journals. 

3 Weather Influences, pp. 141/. 



PHYSICAL ENVIRONMENT 49 

that "temperature, more than any other condition, affects the emo- 
tional states which are conducive to fighting." The curve for the 
females rose more rapidly than the curve for the males with the in- 
crease in temperature, which he regards as "a suggestion of what 
most of the curves show where a comparison of the two sexes is 
made, — namely, a greater susceptibility of women to weather in- 
fluence." Such irregularities as exist in the curves he explains as 
follows: — "The minor fluctuations of the curves may be disregarded, 
as they are very probably due to accidents, but the general showing 
is one of marked deficiency for low temperature with a somewhat 
gradual increase to its maximum excess in the 8o°-85° group, at which 
point a sudden drop takes place. This final decrease is in itself in- 
teresting. It seems without doubt to be due to the devitalizing effect 
of the intense heat of 85 and above." 

In similar fashion he compared these arrests with barometrical con- 
ditions and found that as the barometer fell the number of arrests 
rose. He suggests that this was not due to the actual weight of the 
atmosphere, but because low barometrical conditions frequently 
immediately precede storms, and that the "feeling" of an approaching 
storm caused in many persons the emotional state which led to fight- 
ing. Little difference appeared here between the effects upon the 
two sexes. 

With respect to humidity he found "excesses of assaults for low 
readings and deficiencies for high ones." He explains this on the 
ground that "days of high humidity are not only emotionally but 
vitally depressing, and we have the same element entering into our 
problem that w T e had in the discussion of excessively high temper- 
atures. On such days we perhaps feel like fighting, but such a thing is 
altogether too much exertion, and the police records are none the 
wiser. For low humidities, energy is at a surplus; and although the 
emotional state is ordinarily much more positive, it would seem as if, 
in the long run, with plenty of strength at command, an oppor- 
tunity to use it is generally to be found." The females seemed to 
be restrained from fighting by the high humidities more than the 
males. 

With respect to wind, his curves showed him that "the mild winds 
of between 150 and 200 miles per day (40 per cent, of the days of the 
year have such) are the pugnacious ones." During periods both of 
calm and of high wind the number of arrests fell. He does not attempt 
to explain why high wind has this effect. But he thinks that during 
calm there is an excess of carbon dioxide in the atmosphere which 
lessens the vitality. 

With respect to the character of the day as to fairness and cloudiness 
he found that "the cloudy days are the freest from personal encounter 



50 CRIMINOLOGY 

which has attracted the police." He explains this on the ground that 
"the cloudy days are not the vitalizing ones, but the reverse." 

This study of assaults in New York he compares with a similar 
study of 184 murders in Denver during the years 1884-96. With 
respect to temperature and weight of atmosphere his results were 
about the same as in New York. But with respect to humidity he 
found that murders increased during excessively dry periods. This, 
he thinks, is due to the increased potential of atmospheric electricity 
in the excessively dry Colorado atmosphere. He found also that mur- 
ders increased with high winds, and thinks that this also is due to 
"the super-induced electrical potential of the atmosphere which in- 
creases with the wind." As to the character of the day, he found that 
murders were more frequent on cloudy and wet days. He thinks that 
this is due to the fact that such days are unusual in the Colorado 
climate, and consequently affect the emotions in such a way as to 
produce a mental state of great instability in which dangerous im- 
pulsive acts are liable to be committed. 

Dexter also studied drunkenness in New York City. 1 His data 
were the arrests for intoxication, 44,495 in number, in the Borough of 
Manhattan during the years 1893-5. With respect to temperature 
he found "a deficiency for the hot summer months, and a correspond- 
ing excess for the colder ones of winter, there being 47 per cent, less for 
July than for December, with a somewhat gradual change from one 
to the other." The results with respect to other meteorological con- 
ditions were not so significant, and he summarizes the results of his 
investigation of drunkenness in New York as follows: — "Arrests for 
drunkenness are far more prevalent during the colder months of the 
year than during the warmer; vary inversely as the temperature, 
being excessive for low and deficient for high readings of the thermom- 
eter; are but slightly affected by varying atmospheric pressure, 
though are somewhat above the normal for conditions of high barom- 
eter; increase as both the humidity and the wind increase; show slight 
influences from days of different character, though are somewhat 
excessive for clear, dry days." 

Dexter studied a number of other forms of conduct in their relation 
to the weather, such as the deportment of children in schools, of 
delinquents in prisons and of the insane in asylums; suicides; clerical 
errors, etc. I have not the space to summarize all of these investiga- 
tions, but will quote his summary of his study of suicide. " Suicide is 
most prevalent in the late spring and summer months; is excessive at 
both extremes of temperature, and somewhat above the normal for 
days of moderate heat; is excessive in medium pressure of the air, 

1 Op. cit., pp. 2igff. 



PHYSICAL ENVIRONMENT 5 1 

and deficient for the extremes of pressure; increases with regularity 
as humidity and wind increase from a deficiency of low readings of 
both; is excessive for clear, dry days." x 

Dexter derived a number of conclusions from his investiga- 
tions which I will quote briefly. 2 " Varying meteorological con- 
ditions affect directly, though in different ways, the metabolism of 
life. . . . Some of them seem to be of such a character as to 
accelerate the vital processes of oxidation, and others to retard 
them. For w T 'ant of better terms, I shall call the former anabolic, 
the latter katabolic, conditions. High temperature, high winds 
(better ventilation), fair days with low humidities as an accom- 
paniment, are anabolic; while low temperatures, high baromet- 
ric conditions, calms, rainy and cloudy days and high humidities, 
because of their opposite characteristics, are katabolic." "The 
'reserve energy' capable of being utilized for intellectual processes 
and activities other than those of the vital organs is affected most by 
meteorological changes" "The quality of the emotional state is 
plainly influenced by the weather states. . . . Although meteorologi- 
cal conditions affect the emotional states, which without doubt have 
weight in the determination of conduct in its broadest sense, it 
woidd seem that their effects upon that portion of the reserve energy 
which is available for action are of the greatest import." "Those 
meteorological conditions which are productive of misconduct in a 
broad sense of the word are also productive of health, and mental 
alertness: as a corollary, misconduct is the result of an excess of 
reserve energy, not directed to some useful purpose. . . . On the 
whole, it would seemingly be safe to say that of the activities (or 
cessation of activity) possible to human beings some are the re- 
sult of excessive vitality, and others of a deficiency; and that gen- 
erally speaking, those misdemeanors which have been classed 
under our study as those of Conduct are the results of the for- 
mer, while sickness' and death are accompaniments of the lat- 
ter." 

Meteorological Factors Mingled with Cultural Forces 

It is indeed difficult to disentangle the influence of a single 
meteorological condition from the influence of other meteoro- 
logical conditions and cultural forces which affect human con- 

1 Op. cit., p. 218. 2 Op. cit., p. 266/. 



52 CRIMINOLOGY 

duct. It is important to bear in mind that while statistical 
data, such as we have been considering, may indicate a correla- 
tion between a certain meteorological condition and a certain 
kind of conduct,. this does not necessarily mean that this condi- 
tion is the direct cause of the conduct. It may determine the 
cause of the conduct. Or it may be a result of something from 
which also results the cause of the conduct. In fact, correla- 
tion may be due to various relations other than a direct causal 
relation. 

Dexter apparently believed that criminal conduct results 
in the main from excessive vitality which is misdirected. It is 
unfortunate that he did not study a wider range of criminal 
conduct. The forms of conduct which he studied were mainly 
acts of disorderliness or of violence, such as crimes against the 
person. It was perhaps to be expected that meteorological 
conditions would exhibit much influence upon these forms of 
conduct. If he had studied crimes against property, for ex- 
ample, he would perhaps have discovered that these crimes are 
due rather to a deficiency of vitality which leads certain in- 
dividuals into dishonest conduct in the place of the more 
arduous honest methods of securing the things they desire. 

Furthermore, it is evident in connection with the forms of 
conduct studied, as Dexter himself points out, that excess of 
vitality does not lead every person into these forms of conduct, 
but that on the contrary it leads many individuals into conduct 
of the highest excellence. It is when this vitality is misdirected 
that it results in the abnormal and pathological forms of conduct. 
Hence it is necessary to search for the causes of the misdirecting 
elsewhere than in the meteorological conditions, and this search 
will bring us closer to the immediate causes of criminal conduct. 
We shall find these causes in some cases in abnormal congenital 
traits, in other cases in abnormal traits which have developed 
in the individual, in still other cases in environmental conditions 
of an unusual nature. 

But climate and weather have effects upon human beings 
other than those mentioned above, which cannot be measured 
by statistical methods. For example, in New York City, as 
over a large part of this country, the climate is characterized 
by great extremes of temperature, ranging from the extreme 
heat of summer to the extreme cold of winter. Furthermore, 



PHYSICAL ENVIRONMENT 53 

great changes in temperature sometimes come very suddenly. 
These climatic conditions give rise to a certain amount of nerv- 
ousness and irritability which leads in some cases to crime. 
But it is impossible to correlate this nervous state directly with 
the meteorological conditions which give rise to it in large part. 

Furthermore, climate and weather have much influence upon 
criminal conduct apart from their direct effect upon human 
beings, namely, through their influence upon industrial and 
social conditions in general. For example, to take a specific 
instance, the activities of a pickpocket depend almost entirely 
upon the existence of large crowds of people. As I write these 
words, a heavy thunder shower is pouring down, and has driven 
almost every one from the usually crowded city street. Ex- 
treme cold is likely to have the same effect. So that the weather 
governs to a large extent the activities of pickpockets. 

To take a much more important instance, there are many 
occupations which are seasonal in their nature in the sense that 
there is a great deal of work in these seasonal occupations during 
certain seasons, and much less or none at all during the rest 
of the year. A person engaged in one of these occupations will 
be unemployed during a part of the year, unless he can secure 
employment temporarily in another occupation. Inasmuch 
as these seasonal occupations have-not as yet been dovetailed 
with each other to any great extent, much unemployment re- 
sults from their seasonal character. In Chapter VI will be 
described the influence of unemployment and various other 
economic conditions upon crime. 



CHAPTER V 

URBAN AND RURAL CRIME AND VICE — 
DEMOGRAPHIC FACTORS 

Influence of demographic conditions — Apparent preponderance of urban 
over rural criminality — Forces which accentuate urban criminality: 
the concentration of population increases human desires, causes greater 
conflict of individual interests, intensifies the struggle for existence, 
and creates more opportunities for crime — The organization of vice 
in cities — Unorganized vice in the country — Influence of the growth 
of population upon crime. 

All social phenomena are influenced by the density and dis- 
tribution of population. Civilization itself could not have 
evolved until the human population had attained a relatively 
high degree of density. In the sparse populations of prehis- 
toric peoples and of the primitive peoples which have survived 
down to the present day, conditions with respect to crime have 
been somewhat as described in the chapter on the origin and 
evolution of crime. 

In a region newly settled by civilized men frontier conditions 
prevail until the population becomes relatively dense. The 
criminality of these frontier communities is usually of a rough 
and boisterous sort, such as banditry and brigandage. The 
corresponding crime on the sea is piracy. But these frontier 
conditions are ordinarily transitory in their nature. 1 Only 
in a few backward countries, such as Corsica, 2 Turkey, etc., do 
these conditions persist for a long time. 

The concentration of population is of even greater signifi- 
cance for the study of crime. This concentration takes the form 
of towns and cities. All of these urban communities will be 

1 Speaking of crime in civilized countries (Europe in particular) in rela- 
tion to density of population, Lombroso says that "theft increases with 
density, while homicide diminishes." (C. Lombroso, Crime, Us Causes and 
Remedies, Boston, 191 1, pp. 59-60.) 

2 Cf. A. Bournet, La criminalite en Corse, in the Arch, d'anth, crim., Vol. 
Ill, 1888, pp. 6-31. 



URBAN AND RURAL CRIME AND VICE 55 

designated as cities in this chapter. The crime and vice of cities 
exhibit peculiarities as contrasted with the crime and vice of 
rural districts. I shall, therefore, devote this chapter mainly 
to a comparison of urban and rural crime and vice. 

Apparent Preponderance of Urban over Rural 
Criminality 

There is a widespread opinion that there is a great preponder- 
ance of crime and vice in urban as compared with rural com- 
munities. It is impossible to make an accurate comparison so 
far as vice is concerned, owing to the secret nature of a good deal 
of vice. This opinion so far as it concerns vice is based upon 
the fact that there appears to be much more prostitution, drunk- 
enness, gambling, etc., in cities than in the country. 

With respect to crime also it is difficult to make an accurate 
comparison, though there are some statistics which may be 
used for this purpose. These statistics seem to indicate that 
the city is more criminal than the country. For example, it 
has been estimated that the proportion of the urban to the rural 
population in Italy (Annuar. Stat., 1881, p. 112) was 32 to 68, 
but that in criminality they were more nearly alike, the pro- 
portion being 43 to 57. In other words, the urban population 
had a larger percentage of the criminality of the country than of 
the population. In similar fashion it has been estimated in 
France (Compte gener., 1880) that while the urban population 
is only about 30 per cent of the whole population, it has about 
the same number of crimes as the rural population. 1 It has 
been estimated in Germany that in cities and districts with 
more than 20,000 inhabitants there are 134.2 criminals per 
100,000 adults in the population, while in the rural districts 
there are only 96.6. 2 

Such statistics are, to be sure, not conclusive. It may be that 
crimes are not pursued in the rural districts so effectively as they 
are in the city, so that the record of rural crimes is more incom- 
plete than that of urban crimes. Owing to inefficient police 
protection this has usually been true in the rural communities 

1 Cf. A. von Oettingen, Die Moralstatistik in ihrer Bedeutung fiir eine 
Socialethik; Erlangen, 1882, p. 499. 

2 G. Aschaffenburg, Crime and Its Repression, Boston, 1913, p. 62. 



56 CRIMINOLOGY 

in this country. In fact, certain statistics are available which 
seem to indicate that police efficiency in some cities has lowered 
the urban criminal rate below the rural rate. For example, in 
1890-1891 in England there were in the counties, 1.20 criminals 
per 1000 of the population; in the boroughs, 1.20 criminals per 
1000 of population; and in London, 0.41 criminals per 1000 of 
population. l The low rate in London was apparently due to 
the fact that the police were keeping a careful record of the 
thieves, receivers of stolen goods, etc. 2 It may also happen 
that some of the rural criminals and rural crimes are reported 
in the urban record, because the criminals are caught in the city, 
or the crimes are tried in the city. 

But even though these statistics are not conclusive, we are 
probably justified in assuming that there is more crime in the 
cities than there is in the country. This, however, does not nec- 
essarily mean that the urban population is more criminal in 
character than the rural population. There may be differences 
between the urban and rural environments which give rise to 
this difference in the amount of crime. 

Forces which Accentuate Urban Criminality 

Social evolution has been characterized on the whole by an 
increase in the amount of crime and vice. As ideas with regard 
to right and wrong conduct have developed, legal and social 
conventions have appeared, violations of which constitute 
criminal and vicious acts. Furthermore, the progress of civiliza- 
tion has multiplied human desires and needs, and the effort to 
satisfy these desires is likely in many cases to lead to criminal 
or vicious conduct. The increase in the density of population 
constantly creates new conditions in which more regulations are 
necessary to harmonize the conduct of individuals with each 
other. This situation becomes especially acute when the popu- 
lation is highly concentrated and congested as in a large city. 
A good deal of crime in a large city is due to violations of or- 
dinances with respect to tenements, factories, sanitation, etc., 
which would be absolutely unnecessary in small communities. 

These features of social evolution and progress which in- 

1 England and Wales, Judicial Statistics, 1891, p. x. 

2 R. Mayo-Smith, Statistics and Sociology, New York, 1895, pp. 272-3. 



URBAN AND RURAL CRIME AND VICE 57 

crease the amount of crime and vice have more effect in urban 
than in rural communities. The highest existing stage of civili- 
zation is to be found usually in the cities, and the scale of desires 
and needs of the urban dweller is usually more extensive than 
that of the rural dweller. So that social evolution and progress 
in general may explain in part the apparent preponderance of 
crime and vice in cities. This explanation cannot be proved 
statistically, but the considerations mentioned above suggest it. 

There are, however, more immediate causes for this difference 
between urban and rural communities. Owing to the conges- 
tion of population, imitation probably plays a more important 
part in causing crime in the city than in the country. The news- 
paper accounts of crime aid greatly by furnishing suggestions 
to impressionable minds. Owing to the suggestibility of the 
crowd, crime waves are more likely to take place in cities than in 
the country. 

Society is constantly becoming more complex, so that it is 
more and more difficult for social groups to function normally. 
This is particularly true in the city, where the social environment 
is usually far more complex than in the country. Persons weak 
in mind or in character find it particularly difficult to adjust 
themselves to the complexity of the urban environment. In 
any organized society the idiots and low grade imbeciles cannot 
function normally, and have to be treated in a special way, 
either by being exterminated quietly or by means of incarcera- 
tion in prisons or by internment in asylums and hospitals. But 
the high grade imbeciles and the high grade feebleminded or 
morons may succeed in making their way without any special 
treatment. 

Let us take the case of a moron, for example. In a rural 
environment such a person is likely to find simple work, and 
there are usually persons who exercize a watchful care over 
him or her. Furthermore, there are no difficult problems to be 
solved or unusual temptations to be faced. At worst the moron 
is not likely to become more than a ne'er-do-well or possibly a 
pauper. But in a city such a person is confronted with a much 
more complex situation and many more temptations. He or she 
is not so likely to have relatives or friends to watch over him or 
her, or at any rate these persons find it more difficult to exercize 
a watchful care. The result is that the high grade imbecile and 



58 CRIMINOLOGY 

the moron is much more likely in the city than in the country 
to become a criminal, a drunkard, a prostitute, a mendicant, 
a vagabond, or a pauper. 

It is probably true of several other abnormal types as well 
that they are more likely to become criminal or vicious in the 
city than in the country. For example, those who are abnormal 
in their instinctive or affective equipment in such a way as to 
lessen their resistance against certain kinds of anti-social conduct 
experience more temptations to such conduct in the city than 
in the country, and therefore are more likely to become criminal 
or vicious in the city than in the country. 

To be sure, the advantage is not always on the side of the rural 
community. As I shall show presently, there are certain kinds 
of crime which are more prevalent in the country than in the 
city, apparently owing to peculiarities of the rural environment. 
But while we cannot prove the matter statistically, it is highly 
probable that the urban environment stimulates these abnormal 
types to crime and vice more than the rural environment. 

The same difference doubtless exists for normal individuals 
as well. Normal individuals also are confronted with more 
difficult problems and more temptations in an urban than in a 
rural environment, and consequently a larger number of them 
are likely to succumb to crime and vice. 

There are many kinds of crime which can be committed only 
or best in cities. For example, the picking of pockets is a com- 
mon crime in the city, whereas it would be very difficult to prac- 
tise this crime in rural communities, partly because there are 
few crowds in which the pick-pocket can get close to his victim 
and commit his theft unobserved, and partly because it is 
usually impossible for the thief to disappear quickly after com- 
mitting his crime. There is a much wider field for burglary in 
the city than in the country, because there are many more dwel- 
ling houses containing valuable articles, and jewelry stores, 
banks, etc., containing valuable objects which are worth stealing. 
Furthermore, it is usually more feasible for the burglar to dis- 
appear quickly after committing his crime in the city than in 
the country, where he may have to go a long distance before he 
can cover up his tracks. Blackmail is much more prevalent in 
the city than in the country, because wealthy victims are more 
numerous. The field for committing business crimes is much 



URBAN AND RURAL CRIME AND VICE 59 

wider in the city than in the country, because commerce and 
industry are centralized in cities. Consequently, embezzlement, 
forgery, fraud of various kinds, and many other business crimes 
are most prevalent in cities. Furthermore, as has already been 
indicated, there are many so-called crimes with regard to tene- 
ments, factories, highways, etc., which cannot be committed 
at all or only to a very slight extent in small communities. 

On the other hand, there are several crimes which are more 
frequent in the country than in the city. For example, it has 
been estimated that there is more infanticide in the country 
than in the city. The reason for this is obvious. It is more 
difficult in the country for the woman, unmarried or married, 
to get rid before birth of a child that is not wanted. There are 
not the midwives and doctors at hand who are ready to procure 
an abortion. In the cities, on the other hand, criminal abortion 
is much more frequent than in the country. 

It has been estimated that crimes against the person are com- 
mitted more frequently in the country and crimes against prop- 
erty in the city. In other words, rural criminality is on the 
whole more violent than urban criminality. Lombroso expresses 
this opinion in the following words: — "The urban and the rural 
districts have each their own specific type of criminality. The 
crimes in the country are more barbarous, having their origin 
in revenge, avarice, and brutal sensuality. In the city the crimi- 
nality is characterized by laziness, a more refined sensuality, and 
by forgery." 1 It has, however, unfortunately been true that 
there have been many crimes against the person in American 
cities, owing in part to ineffective police protection. 

The progress of science has aided the criminal more or less, 
and scientific methods can usually be applied most feasibly in 
the city, as, for example, in opening safes, or in making counter- 
feit money. Furthermore, these methods are used principally 
by the professional criminal, who is the most intellectual type 
of criminal, with the exception of the political criminal and the 
criminal by passion. The professional criminal carries on his 
operations largely in the city for various reasons, as, for example, 
because it is more profitable, and because he prefers urban life. 
The use of scientific methods by the criminal class should be 
more than counterbalanced by the use of scientific methods 
1 Crime, Its Causes and Remedies, Boston, 1911, p. 74. 



60 CRIMINOLOGY 

by the agents of the law. This will probably happen in course 
of time, but the police have not as yet made extensive use of 
scientific methods. 

There are several reasons why criminals gravitate toward the 
cities for carrying on their operations, and for purposes of resi- 
dence. As has already been indicated, a wider range of crimes 
can be committed in the city than in the country, many of them 
of the more profitable sort. As has also been indicated, it is 
usually more feasible for a criminal to hide himself in a city 
than in rural communities. After committing a crime he may 
elude pursuit more easily in the maze of city streets, crowded 
during the day and deserted at night, and in the numerous houses 
in which he may take refuge; whereas in the open highways of 
rural districts he can usually be pursued more easily with the aid 
of the telephone and be captured. 

The city furnishes a more feasible residence for the criminal 
than the country. In a small community it is impossible for any 
one to live very long without his occupation becoming known to 
his neighbors. Any one who refuses to make his occupation 
known soon becomes a suspicious character, which would be very 
dangerous for the criminal. In the city, on the contrary, a person 
may live and work unnoticed by his nearest neighbors, so that it 
becomes the function of the police alone to watch the criminals 
and suspicious persons. If the police perform this function well, 
the city also will become a dangerous place for the criminal. But 
unfortunately the police have frequently failed to perform this 
function efficiently. 

In addition to all the reasons suggested above as to why crim- 
inals are more likely to live in cities rather than in the country 
is the fact that a criminal usually finds city life more agreeable 
than country life. In the city he finds the social life of the under- 
world, of the "Tenderloin," which cannot possibly exist in the 
country. As the criminal is more or less social like all other hu- 
man beings, he craves a social circle in which he can move freely. 
Furthermore, in the city he can indulge in many vicious practises 
the enjoyment of which is not possible at all or is very limited 
in the country. This is due largely to the fact, which I shall 
discuss presently, that the means for the enjoyment of certain 
vices can be organized in the city in a way which is almost im- 
possible in rural communities. In fact, life in a rural district 



URBAN AND RURAL CRIME AND VICE 6 1 

would be so dull for most criminals that they would have little 
incentive to carry on their criminal activities in order to secure 
the means for the enjoyment of the pleasures which they crave. 

An additional reason for the preponderance of criminals in 
cities may be that the city furnishes a better breeding ground for 
criminals than the country. If the urban environment is of such 
a nature that persons born in it are more likely to have the ab- 
normal and pathological traits which lead to criminality and 
viciousness, and if the rearing they receive in this environment 
is less likely to keep them from crime and vice than the one they 
would receive in a rural environment, the city furnishes a better 
breeding ground for the criminal and the vicious classes than 
the country. I shall discuss this subject in the chapter on 
juvenile criminality. 

Furthermore, the immigration from the country to the city 
may swell somewhat the criminality of the city. A large part 
of this immigration is young. It probably represents on the 
whole the better portion of the rural population, because the 
more active and the more intelligent are most likely to go to the 
city. But since urban life is somewhat different from rural life, 
and involves difficult problems of adjustment, it is necessary 
for all of these immigrants to adjust themselves to the life of 
the city. Some of them, mostly of the weaker sort, though also 
including some of the stronger, will fail, and will join the ranks 
of the criminal and the vicious. 

The reverse of this process is not so likely to happen. In the 
first place, the migration from the city to the country is usually 
not so great as in the opposite direction. In the second place, 
the urban immigrants to the country, while they may not prosper 
greatly, are not likely to become criminal and vicious, since the 
opportunities for crime and vice are not so numerous in the 
country. 

So that this interchange of population between city and coun- 
try is more likely to swell the criminality and viciousness of the 
city than that of the country. At any rate, that is more likely 
to be the immediate result. It is well to bear in mind that in 
the long run the rural immigration to the city may lessen the 
criminality and viciousness, since the immigrants who are 
successful in the city may do a good deal to check the forces for 
urban criminality and vice. 



62 CRIMINOLOGY 

We have now considered a number of reasons for the assumed 
preponderance of crime and vice in the city, especially with 
regard to crime. Let us consider some of the reasons for the 
apparently larger amount of vice in the city. 

The Organization of Vice in Cities 

It is evident that it is more feasible to organize some of the 
vices in the city than in the country. For example, prostitution 
becomes highly commercialized in cities with an extensive system 
for procuring the supply of prostitutes and plenty of capital for 
the equipment of numerous houses of prostitution. Expensively 
furnished gambling houses are established with every possible 
means for gambling. Numerous saloons are established by the 
breweries to encourage men to drink, while numerous restau- 
rants encourage both men and women to eat as well as to drink 
to excess. 

The organization of vice is possible in the city because there 
are present, on the one hand, the vice enterprizer with plenty 
of capital, and, on the other hand, many customers. None of 
these are equally available in small communities, though it is 
probable that the enterprizer with his capital would almost 
always be on hand if there was sufficient demand for him. 
Furthermore, there are doubtless many small places in which 
there are enough would-be customers to make it worth while for 
the enterprizer. But vicious enterprizes are seriously handi- 
capped in rural communities because secrecy is not so feasible 
as in the city. Inasmuch as these vicious practises usually labor 
under social, moral, and sometimes legal condemnation, most 
individuals do not want it generally known that they indulge in 
them. In a large city where most of the inhabitants are known 
each by only a few of his neighbors, it is usually feasible for an 
individual to carry on vicious practises without having it gen- 
erally known. But in a small community where each inhabitant 
is known by most or all of the population, it is difficult for an 
individual to carry on many kinds of vicious practises, especially 
in a village or town where it is organized for the public. This is 
doubtless the principal obstacle in the way of much organized 
vice which would otherwise exist in small places. 

This situation, which decreases the amount of organized vice 



URBAN AND RURAL CRIME AND VICE 63 

in the country, tends to increase it in the city. Many of those 
who are debarred by the lack of secrecy from indulging in vicious 
practises in small places come to the city for this enjoyment. 
So that in every large city vice is organized to a considerable 
extent to supply the demand of visitors, and each city is the 
center for the vicious activities of many of the inhabitants of the 
surrounding region. 

Furthermore, the city furnishes special stimuli for vice. It is 
difficult for many urban inhabitants to secure healthful and 
normal forms of enjoyment. But all human beings crave a 
certain amount of pleasure, and the demand for pleasure is 
imperative in the case of the young. If normal pleasures are not 
available, both adults and youth are sure to adopt vicious forms 
of enjoyment. In the case of the young the lack of means of 
enjoyment is likely to lead to crime as well as to vice, in order to 
furnish the means of enjoyment. This is not so likely to happen 
to the adult who is not already a criminal, but the adult under 
these circumstances is sure to fall into vicious habits. 

Another feature of the city which gives rise to a certain 
amount of vice is the nervous strain of urban life. In the city 
the individual is subjected to many stimuli which are very tiring 
to the nerves. Some persons will succumb to the temptation to 
sooth their nerves with drugs or to stimulate them with in- 
toxicants. 

I have indicated how poverty may lead to vice through lack 
of normal means of recreation. But wealth also may lead to 
vice, though in different ways and for different reasons. The 
ability to satisfy any desire however vicious belongs to the 
wealthy, while frequently a surfeit of normal pleasures creates 
a desire for abnormal and vicious pleasures. As the wealthy 
live in the large cities much more than in small places, wealth 
tends to swell vice in cities much more than in rural commun- 
ities. 

In connection with the subject of poverty and wealth as 
causes of vice it may be well to call attention to the fact that the 
economic struggle for existence is probably more bitter in the 
city than in the country. Under the present economic organiza- 
tion of society there emerge from this struggle, on the one hand, 
those who are successful and acquire great wealth, which leads 
to a certain amount of vice though not so much to crime, and, 



64 CRIMINOLOGY 

on the other hand, the large number who are unsuccessful, whose 
poverty leads to much crime and vice. 

Unorganized Vice in the Country 

In this chapter I have described some of the factors for 
crime and vice in cities. In all probability there is more crime 
in urban than in rural communities. This, however, does not 
mean necessarily that the urban population is more criminal by 
nature than the rural population, for, as we have seen, it is due 
probably to peculiar features of the urban environment. There 
are also forces for vice in cities which do not exist at all or to the 
same extent in rural communities. However, it is by no means 
certain that there is more vice in cities than in the country. 
There may be, for reasons I have discussed, more organized 
vice in cities, but there may be as much or even more unor- 
ganized vice of the same kinds in the country. For example, 
gambling houses may not be found in rural communities, but 
there is much betting and petty gambling of various sorts. In 
fact, gambling may even become somewhat organized, as in 
connection with horse racing at the country fairs. Saloons may 
not be so common in the rural communities as in the cities, but 
there is a good deal of intemperance in rural homes nevertheless. 

Furthermore, there are many vices which can be carried on in 
secret and not become publicly known like crime. There are 
also many vices which frequently pass unnoticed as such. It is 
obviously impossible to estimate the exact amount of unor- 
ganized vice in the country as compared with the city, but it is 
possible that there is as much or more of it in the country. 
Excessive and malicious gossiping, scandal mongering, back- 
biting, nagging, bigotry, unscrupulous cunning in commercial 
transactions, etc., should be rated as vicious, and it is very 
probable that the rural population with its narrower outlook and 
range of interests is more vicious in these respects than the 
urban population. 

Influence of the Growth of Population upon Crime 

Before closing this chapter I wish to point out the significance 
of the growth of population with relation to crime. If the pop- 
ulation increases more rapidly than the production of wealth, 



URBAN AND RURAL CRIME AND VICE 65 

the standard of living falls, and poverty and its attendant evils 
increase. In other words, the economic welfare of the community 
diminishes. Inasmuch as the reproductive power of mankind 
is very great, it is the tendency of population to be pressing con- 
stantly upon the means of subsistence, and thus to increase 
economic misery. Consequently, rapid growth of population is 
likely to accentuate the economic factors for crime. 

In another work I have discussed at considerable length the 
influence of the growth of population upon economic welfare, 1 
and will, therefore, cite a few of the conclusions in that book: — 

"In our modern civilized world there is needed on the whole, 
if not restriction of population, at any rate a greater moderation 
in the rate of increase than has been true during the past cen- 
tury. It may be possible to justify this upon the ground alone 
of the danger of reaching the ultimate limit of subsistence. But 
even if we grant that such a time is a long way off, so that it is 
not of practical importance now, other reasons for advocating 
such restrictions still remain. We have seen that it might be 
more feasible to remedy the distribution of wealth if population 
was not increasing so rapidly. But a more certain and obvious 
reason is that if the population were not increasing so rapidly, 
the general standard of living would be more likely to go up or 
to go up more rapidly, and while the poor might not benefit by 
this at once, or at any rate would not reach this standard at once, 
there would be more reason to hope that most if not all of them 
would attain it ultimately." (Pp. 177-178.) 

"So that we should judge the increase of population with 
relation to two things, namely, the maintenance and progressive 
rise of the standard of living, and the diminution of poverty and 
its attendant evils. To do this we must keep constantly in mind 
the progress of the arts and sciences and the accumulation of 
capital, as well as the supply of natural resources. The in- 
crease of population furnishes a larger supply of labor. But if 
population increases faster than the amount produced can be 
increased with the aid of science and the use of capital, it is 
evident that the general standard of living must be depressed, 

1 Poverty and Social Progress, New York, 1916. See especially the chap- 
ters on "The Growth of Population and the Increase of Wealth," "Popula- 
tion and Poverty," and "The Raising of Wages and the Regulation of the 
Labor Supply." 



66 CRIMINOLOGY 

and it will become increasingly difficult to lessen poverty while 
there will be great danger that it will increase. We shall be in a 
better position to abolish unemployment, sweating, and the 
other causes of poverty, if the general standard of living can be 
maintained and constantly raised." (P. 182.) 

"The tendency of population is to increase more rapidly than 
it is the tendency of industry to expand, under the existing 
system of private industrial enterprize. Consequently, there is a 
large surplus of unemployed labor, and bitter competition among 
those at work tends to keep down the rate of wages. It is ob- 
vious, therefore, that, by eliminating this surplus and reducing 
the supply of labor in proportion to the other factors of produc- 
tion, unemployment can be prevented in large part, and the 
rate of wages can be raised. 

"There are several ways in which this can be accomplished. 
The fundamental method is by the artificial control of the birth 
rate, which will prevent the supply of labor from increasing more 
rapidly than the other factors of production. We have already 
discussed the stupid and brutal restrictions upon the artificial 
control of births in this country and elsewhere. We have shown 
that these restrictions are based upon religious and moral pre- 
judices and social and economic fallacies, which are probably 
fostered by those to whose interest it is to exploit the working 
class. Few changes could be of greater value to society at large 
and to the poorer classes in particular than the abolition of these 
restrictions and the widespread dissemination of the necessary 
knowledge for the artificial control of births. A characteristic 
feature of social progress and of cultural evolution is the in- 
creasing control by man of the forces which determine his wel- 
fare. One of the most important of these forces is the rate of 
increase of population. It is time for man to acquire control of 
this factor." (Pp. 372-373.) 



CHAPTER VI 
THE ECONOMIC BASIS OF CRIME 

The economic struggle for existence — Economic changes and crime: sea- 
sonal fluctuations; the trade cycle; prices; wages — The economic 
crimes: crimes against property — The economic status of the crim- 
inal — Economic classification of criminals — Occupational distribu- 
tion of criminals — Professional criminality — Influence of economic 
organization upon crime — Poverty and crime — The standard of 
living and crime — Wealth and crime and vice. 

Like every other animal species mankind is engaged in a 
struggle for existence. This is true both of the human species 
as a whole and also of individual human beings amongst them- 
selves. But cultural evolution has given the human struggle 
for existence an unusually specialized and complex form. 

The Economic Struggle for Existence 

Owing largely to the invention and use of tools, there has 
developed a highly differentiated system of division of labor. 
This in turn has led to a complex system of exchange. As a 
consequence most human beings do not produce what they 
consume, but receive their subsistence indirectly from the pro- 
ducers. Furthermore, the correlated systems of the division 
of labor and of exchange have resulted in the formation of social 
groups and classes whose status and traits are determined mainly 
by their functions in the economic system. The human struggle 
for existence has therefore become in large part an economic 
struggle, that is to say, a struggle to obtain the commodities 
needed and desired within the system of production based upon 
the division of labor and exchange. This struggle, though it 
becomes more complex and indirect in its character, is no less 
bitter than it is among many animal species, and is as all- 
pervasive. It touches upon and influences every important 
aspect of the life of mankind. It is of special significance with 
respect to criminal activity, for some of this activity doubtless 



68 CRIMINOLOGY 

arises directly out of the economic struggle, while most if not 
all of it is conditioned by the economic environment. 

There has been much difference of opinion as to the influence 
of economic forces upon crime. Some have thought that crime 
is due entirely to economic factors. Others have asserted that 
economic conditions have little or nothing to do with the causa- 
tion of crime. As a matter of fact, it is a difficult problem to 
solve on account of the complexity of the factors involved. 
These include the forces of the physical environment (climate, 
season, topography, etc.), the biological factors, and the social 
factors, such as the economic and the political. To disentangle 
these different categories of forces and appraize accurately their 
relative influence in the causation of crime is a difficult if not 
an impossible task. 

The criminality of any time and place is conditioned and to a 
certain extent determined by the existing economic system. 
Where the methods of production are not highly developed, so 
that the wealth of the community is limited, the living condi- 
tions will be of the rude sort which are likely to encourage 
crimes against the person. As the methods of production be- 
come more complex and wealth increases, more crimes against 
property become possible. 

We are interested in ascertaining the direct and immediate 
influence of economic forces upon criminality. Several methods 
may be used in studying this problem. In the first place, we 
may correlate fluctuations in the amount of crime with eco- 
nomic changes. In the second place, we may study the eco- 
nomic crimes, namely, the crimes in which economic motives 
are obviously or apparently predominant. In the third place, 
we may study the economic status of the criminal, namely, 
the economic classes with respect to the distribution of wealth 
and the occupations to which they belong. In the fourth place, 
we may study professional criminality, namely, the criminal- 
ity of those who make the committing of crimes a profession 
and occupation. In connection with these methods of studying 
the problem we shall have occasion to study various economic 
phenomena and conditions, such as the extreme variations in 
the distribution of wealth, the economic pressure due to poverty 
as leading to crime in the effort to avoid starvation or to secure 
a higher standard of living, unemployment, low wages, mendi- 



THE ECONOMIC BASIS OF CRIME 69 

cancy, vagrancy and other forms of dependency as leading to 
crime. 

Economic Changes and Crimes 

In Chapter IV it has been shown that while crimes against 
the person increase with the seasonal rise in temperature, crimes 
against property increase with the seasonal fall in temperature. 
Consequently, the largest number of crimes against property 
take place during the winter months, while the largest number 
of crimes against the person take place during the summer 
months. I have already presented some statistics with re- 
spect to these seasonal fluctuations, and will now present a few 
more with respect to the seasonal fluctuations in the number 
of crimes against property. 

Lacassagne has prepared a criminal calendar which shows the 
seasonal distribution of crimes in France : — 1 

Seasonal Distribution of Crimes Against Property in France, 

1827-1870 

Number of Crimes Against Property for Each Month, Reduced to an Equal 
Duration of 31 Days 

January 16,350 

February 15,400 

March 14,250 

April i3,45o 

May 13,625 

June i3,45o 

July 13,225 

August 13,425 

September 13,875 

October 14,400 

November 16,100 

December 16,825 

The above table indicates that the number of crimes against 
property in France is highest in the following order during the 
months of December, January, November, February, October, 
and March; and is lower during the remaining months of the 
year. In other words, crimes against property are more numer- 
ous during the autumn and winter than they are during the 

1 A. Lacassagne, Marche de la criminalite en France de 1825 d 1880, in the 
Revue scientifique, May 28, 1881, pp. 674-684. 



70 CRIMINOLOGY 

spring and summer. The average for the summer months is 
13,367, for the spring months is 13,775, f° r the fall months is 
14,792, and for the winter months is 16,192, thus showing a 
steady increase from the hottest to the coldest season. 

The following table indicates the seasonal distribution of 
certain crimes against property in Germany: — x 

Seasonal Distribution of Crimes Against Property in Germany 

Daily averages for each month if the daily average for the year were 100 

Crimes Years Jan. Feb. Mar. April May June July Aug. Sept. Oct. Nov. Dec. 

Simple theft 1883-92 113 115 98 85 87 88 88 92 92 106 117 121 

Aggravated theft ..1883-92 102 107 92 89 94 98 98 96 94 106 112 111 

Embezzlement 1886-92 100 97 94 94 98 100 103 101 98 104 105 108 

Robbery 1886-92 100 87 78 84 94 98 99 106 84 120 132 116 

Receiving stolen 

goods 1883-92 123 122 103 82 82 83 80 81 81 100 120 142 

Fraud.. 1888-92 107 111 94 89 90 95 95 91 90 102 116 120 

How then is the preponderance of crimes against property 
during the colder months of the year to be , explained? The 
first explanation which may occur to the reader is that the lower 
temperature stimulates the propensity to thieving and like 
crimes. There is probably a slight amount of truth in this 
explanation. It is very likely that the stimulating effect of 
cold leads to greater criminal activity, just as it leads to greater 
non-criminal activity. But this phenomenon is doubtless to be 
accounted for in the main by the economic conditions which 
prevail during the colder months. In several of the seasonal 
occupations there is little activity during the colder months of 
the year. Among these are agriculture, the building trades, 
etc. There are, to be sure, some seasonal occupations which 
are more active during the colder months. But there appears, 
on the whole, to be more activity and more work available dur- 
ing the warmer months than there is during the colder months. 
The statistics with regard to employment indicate that there 
is more unemployment during the colder months, and especially 
towards the end of the colder months, than there is during the 
warmer months. 2 

On the other hand, human demands and desires increase 

1 Statistik des Deutschen Reichs, Neue Folge, Band 83, Kriminalstalistik 
fur das Jahr 1894, Berlin, 1898, II, 53. 

2 I have presented some of these statistics in my Poverty and Social Prog- 
ress, New York, 1916, Chap. IX. 



THE ECONOMIC BASIS OF CRIME 7 1 

considerably during the colder months. More food, clothing, 
and shelter are needed, while it is probable that the amusements 
desired in winter are more costly than those desired in summer. 
So that it is practically certain that the preponderance of crimes 
against property during the colder months is due mainly to 
greater destitution, on the one hand, and to a higher degree of 
economic pressure to expend, on the other hand. 

But much more extensive than the seasonal economic changes 
are the changes that take place in connection with the trade 
cycle, and in connection with industrial evolution which is due 
to improvements in the methods of production. The correla- 
tion between these economic changes and criminality is revealed 
by the statistics of fluctuations in prices and the statistics of 
the number of crimes committed or of the number of criminals 
convicted. 

The accompanying charts indicate direct correlation between 
the prices of wheat and crimes against property in England and 
Wales and in France, and the prices of rye and convictions for 
theft in Russia. 1 These charts indicate that in these countries 
there is a general tendency for crimes against property to in- 
crease as the prices of cereals rise, and for these crimes to de- 
crease as these prices fall. The correlation is not always exact, 
and there is frequently a noticeable lag, but this is to be ex- 
pected since it usually requires a little time for the economic 
changes to influence the criminality. Many more statistics 
could be cited which show that the same situation exists in 
other countries, and there is good reason to believe that this 
correlation exists with a fair degree of regularity all over the 
world. 2 

It would also be possible to show that inverse correlation 
exists between changes in wages and crimes against property, so 
that as wages rise these crimes tend to decrease, and as wages 
fall these crimes tend to increase. But this correlation is not 
as close or as apparent as the direct correlation between these 
crimes and prices, because wages change more slowly than prices, 
and therefore cannot have so much effect at any one time upon 
the extent of criminality. 

1 The tables from which these charts are plotted are given in Appendix A. 

2 Many of these figures are cited in W. A. Bonger, Criminality and Eco- 
nomic Conditions, Boston, 1916. 



72 



CRIMINOLOGY 



ENGLAND AND WALES 



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THE ECONOMIC BASIS OF CRIME 73 

Now changes in prices and wages usually cause changes in 
the economic welfare of the great majority of the people. A 
rise in prices, especially in the prices of such articles as the staple 
foods, is almost certain to raise the cost of living for the poorer 
classes, since wages do not ordinarily rise as fast as prices. In 
similar fashion a fall in wages may cause a rise in the cost of 
living, though this happens rarely, since prices fall usually as 
fast or faster than wages. These facts indicate, therefore, that 
there is a causal relation between economic welfare and crimes 
against property. 

It would, however, be a mistake to assume, as has been as- 
sumed by some writers, especially among the socialists, that 
this criminality is determined entirely by these economic factors. 
Many factors play a part in causing crime. Among these are 
the telluric factors, the organic factors, and various social factors 
apart from the economic. We have already studied the influence 
of several of the telluric factors, such as climate and season. We 
have noted a correlation between seasonal changes and crimi- 
nality which, however, does not necessarily mean that crim- 
inality is determined entirely by these telluric factors. In sim- 
ilar fashion there exists a correlation between economic changes 
and criminality which indicates that, while the other factors 
are relatively constant, changes in the economic factors are 
bringing about corresponding fluctuations in the criminality. 1 

1 Van Kan has stated this idea clearly and precisely in the following words: 
"La criminalite suit avec une regularite frappante la courbe des fluctua- 
tions economiques, et ce, non pas parce que le crime est le produit exclusif 
du facteur economique, mais en raison de ce que, precisement, parmi tous 
les facteurs criminogenes, le facteur economique est le plus mobile, le plus 
variable et le plus expose a des oscillations annuelles et qu'il exerce partout 
1'influence la plus apparente et la plus soudaine sur le mouvement des 
phenomenes qui se rattachent a lui. Les autres facteurs qui agissent sur les 
delits, facteurs d'ordre organique, d'ordre cosmique et tellurique et d'ordre 
social, non economique, sont, de nature, sujets a. des changements annuels 
restreints et lents, et, partant, peu apparents. Leur courbe est presque 
rectiligne. Done la courbe correspondante de la criminalite que la premiere 
courbe tient sous sa dependance, ne manifeste non plus que des variations 
insensibles et demeure presque identique a elle-meme, d'annee en annee. 
Ce sont les oscillations economiques, capricieuses et brusques, qui constituent 
dans la courbe de la criminalite l'element perturbateur et provoquent les 
differences qu'on y remarque d'une annee a l'autre." (J. van Kan, Les 
£auses economiques de la criminalite, Paris, 1903, p. 11.) 



74 



CRIMINOLOGY 

FRANCE 

YEARS 



O ,-H 

00 00 




THE ECONOMIC BASIS OF CRIME 75 

These economic changes are due in part to telluric forces 
which determine the size of the crops, etc., and in part to the 
economic and political organization of society which leads to 
the fluctuations, sometimes almost catastrophic in their char- 
acter, of the trade cycle. They give rise to changes in the extent 
of crime in various ways. Generally speaking it may be said 
that these changes are due to variations in the purchasing power 
of the great majority of the population which modify the eco- 
nomic pressure to commit criminal acts. 

The Economic Crimes 

The second method of studying the influence of economic 
factors upon criminality is to ascertain which of the crimes are 
due in the main to economic forces, and may therefore be called 
the economic crimes. It is generally assumed that crimes against 
property are due to economic motives, and are therefore eco- 
nomic crimes. Roughly speaking this is true. But there are 
some exceptions to this rule, and there are a good many crimes 
which are due in part to economic forces but also to other 
forces. 

It is not easy to measure accurately the influence of economic 
forces in the causation of any kind of crime. Fornasari di Verce 
has made a careful study of the influence of economic conditions 
and changes upon criminality in Italy between the years 1873 
and 1890. In the following table he indicates the extent to 
which he believes the different kinds of crimes to be influenced 
by the economic welfare of those who commit them : — x 

Tarde has expressed a similar thought from a conservative point of view 
as follows: 

"En somme, la criminalite et la moralite d'un pays tiennent bien moins 
a, son etat economique qu'a ses transformations economiques. Ce n'est pas 
le capitalisme comme tel qui est demoralisateur, c'est la crise morale qui 
accompagne le passage de la production artisane a la production capitaliste, 
ou de tel mode de celle-ci a tel autre mode." (G. Tarde, La criminalite et 
les phenomenes economiques, in the Arch. oVanth. crim., Vol. XVI, 1901, 
p. 568.) 

1 E. Fornasari di Verce, La criminalitd e le vicende economiche d'ltalia, 
Turin, 1894, p. 138. 



76 



CRIMINOLOGY 



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THE ECONOMIC BASIS OF CRIME 



77 



6-5 

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Much. 



3 

tj cO 

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Moderately. 



Little. 



Crimes over which 
the Influence of 
Alcohol is 
Predominant. 



Hardly at AU. 



Not at All. 



i. Thefts of all kinds. 

2. Embezzlement, cheating, and 

other frauds. 

3. Crimes against property coming 

before the magistrate (except- 
ing rural thefts, included un- 
der 1). 

4. Commercial crimes (excepting 

fraudulent bankruptcy) . 

5. Blackmail, extortion, and robbery. 

6. Crimes against the order of the 

family. 

7. Crimes against persons coming be- 

fore the magistrate. 

8. Crimes against the public order. 

9. Crimes against the public admin- 

istration (excepting rebellion 
and violence to public authori- 
ties). 

10. Forgery and counterfeiting. 

I. Assault and extortion with 

homicide. 
II. Rebellion, and violence to the 
public authorities. 

III. Homicide of every kind. 

IV. Assaults and intentional injuries. 
. . . Sexual crimes. 

11. Attacks upon the safety of the 

state. 

12. Perjury, slander, etc. 

13. Fraudulent bankruptcy. 

14. Insults, and defamation of char- 

acter. 

15. Crimes against religion. 

16. Arson and malicious mischief. 



Fornasari di Verce has made a similar study of the influence 
of economic conditions and changes upon criminality in Great 
Britain between the years 1840 and 1890, and in New South 
Wales between the years 1882 and 1891. In the following table 
he gives the results of this study for Great Britain: — 2 



l I have translated the word "vicende," which literally means "vicissi- 
tudes" or "changes," by the word "welfare," because this word seems to 
express most accurately the author's meaning at this point. 

2 Op. cit., p. 202. 



78 



CRIMINOLOGY 



U 






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Much. 
Moderately. 

Little. 

Crimes over which 
the Influence of 
Alcohol is 
Predominant. 

Not at All. 

Only slightly. 



Crimes against property without 
violence. 

Crimes against property with vio- 
lence. 

Crimes against property with pre- 
meditated destruction. 

Crimes other than those named 
above and those against persons 
and against the currency. 

Crimes against persons. 



Misdemeanors and contraventions. 
Forgery and counterfeiting. 



These tables indicate that economic pressure tends, generally 
speaking, to increase crimes against property more than crimes 
against the person. This merely confirms what we have al- 
ready learned from the correlation between fluctuations in 
prices and wages and changes in the extent of criminality. 

The following table indicates the percentage of economic 
crimes as compared with other kinds of crimes in several coun- 
tries: — x 

Economic 
Crimes 

Germany, 1896-1900 41 .89 

England, 1881-1900 36.78 

France, 1881-1900 60.09 

Italy, 1891-1895 46 . 75 

Netherlands, 1897-1901. . . 42 . 12 

* In this class are included such crimes as insults, malicious mischief, 
arson, assaults, homicide, etc. 



Sexual 


Crimes of 


Political 


Crimes 


Vengeance * 


Crimes 


1.32 


56.67 


0. 12 


0.63 


62 . 59 


0.00 


i-59 


38.32 


0.00 


i-57 


51-68 


0.00 


0.84 


57-04 


0.00 



We can see from the above table that the so-called economic 
crimes in which economic factors predominate constitute from 
two to three-fifths of the total number of crimes. 2 Furthermore, 

1 Summarized and adapted from W. A. Bonger, op. cit., pp. 538-542. 

2 According to the U. S. Census of 1910, the offenses for which persons 
were committed to penal institutions during the year 19 10 were distributed 
as follows: 



THE ECONOMIC BASIS OF CRIME 79 

we have reason to believe that economic factors play at least a 
small part in the causation of many of the other crimes. 

Sexual crimes are due in part to economic factors, such as 
the economic difficulties in the way of marrying in early youth, 
the economic dependence of woman, intemperance stimulated 
by poverty, etc. 

I have already stated that crimes against the person tend 
to increase with economic prosperity and vice versa. This 
fact suggests that economic factors have some influence upon 
these crimes. It is probably to be explained by the fact that 
in times of prosperity men come together more frequently for 
purposes of amusement, and in the present crude state of civili- 
zation they are prone to amuse themselves by an intemperate 
use of alcohol and by other riotous forms of conduct which are 
likely to lead to personal encounters, and thus to crimes against 
the person. 

It is impossible to measure accurately the influence of the 
economic factors in the causation of these crimes against the 
person. But the above considerations and many others which 
might be named indicate that they should be given some 

Prisoners and Juvenile Delinquents Committed in 1910 

Offense No. of 

Offenses 

All offenses 493,934 

Offenses against the person 30,411 

Gainful offenses against property 67,557 

Other offenses against property 10,641 

Offenses against chastity 13,944 

Offenses against the administration of government 2,456 

Offenses against public health and safety 14,637 

Offenses against sobriety and good order 313,406 

Offenses against public policy 18,372 

Offenses against prisoner's family 3,666 

Offenses peculiar to children 7,803 

Miscellaneous groups 11,041 

According to this table, crimes against property constituted less than 
one-sixth of the offenses for which commitments were made. But it will 
be noted that more than three-fifths of the total number of offenses were 
offenses against sobriety and good order, which include drunkenness, dis- 
orderly conduct, vagrancy, etc. Most if not all of these petty offenses are 
omitted from the European figures given above. So that if we omit these 
minor offenses, the crimes against property constitute nearly one-half of 
the offenses which remain. 



80 CRIMINOLOGY 

weight. 1 The same is true of political crimes which, while they 
are few in number, are of great significance. Many of these 
crimes are committed because of existing economic conditions 
and in an effort to change these conditions. 

The Economic Status of the Criminal 

The third method of studying the influence of economic 
forces upon crime is to investigate the economic status of the 
criminal. This may be accomplished by ascertaining the eco- 
nomic classes with respect to the distribution of wealth to which 
criminals belong, and by ascertaining the occupations to which 
they belong. 

It is a well known fact that the majority of the criminals 
belong to the poorer classes. But it is also true that the major- 
ity of the total population belongs to these classes. So that 
it is necessary to ascertain whether the percentage of criminals 
from these classes is larger than the percentage which these 
classes form of the total population. This is a difficult matter 
to determine on account of the paucity of accurate data. 

One of the few computations of this sort has been made by 
Fornasari di Verce. 2 Taking the statistics from the Italian 
census of 1881, he grouped together the occupations consisting 
mainly of the rich, the well-to-do, the moderately well-to-do, 
and those with enough to live comfortably, and found that they 
contained 390.66 out of every thousand persons of both sexes 
over nine years of age in Italy; while the occupations consisting 
mainly of the poorer classes, having scarcely enough to live on, 
contained 609.34 out of every thousand persons of both sexes 
over nine years of age. 

From the Italian judicial, penal statistics he ascertained that 
persons convicted of crime during the years 1887, 1888, and 
1889, were distributed according to their wealth or poverty as 
indicated in the following table: — 

1 Bonger, who as a socialist gives excessive weight to the influence of 
economic factors, expresses the opinion that the principal causes of crimes 
against the person are "first, the present structure of society, which brings 
about innumerable conflicts; second, the lack of civilization and education 
among the poorer classes; and third, alcoholism, which is in turn a conse- 
quence of the social environment." (W. A. Bonger, op. cit., p. 643.) 

2 E. Fornasari di Verce, op. cit., pp. 3-4. 



THE ECONOMIC BASIS OF CRIME 51 

Economic Classification of Persons Convicted of Crime in Italy 

Percentage of Distribution 

The Economic Classes 1887 1888 i88g 

Indigent 56-34 57-45 56.00 

Having only the bare necessities 29 .99 30. 77 32 . 15 

Moderately well-to-do 11 . 54 9 . 98 10 . 13 

Well-to-do or rich 2.13 1 . 80 1.72 



The economic classification used in this computation is neces- 
sarily arbitrary, and doubtless leads to some error. But so 
far as this computation can be relied upon, it indicates that 
while about 60 per cent, of the total population belong to the 
poorer classes in Italy, about 85 to 90 per cent, of the convicted 
persons belong to these classes. 

More statistics might be cited all of which indicate that the 
poorer classes are proportionally much more criminal than the 
richer classes. 1 This suggests a correlation between poverty 
and criminality similar to the correlations we have already 
found between certain other economic forces and conditions 
and criminality. It suggests that poverty is a cause of crimi- 
nality. This is contended by some writers, especially the so- 
cialist writers. On the other hand, it is denied by some writers 
on the ground that both poverty and criminality are due to 
weaknesses of character in the individual, so that they are 
common results of the same cause, but not causes of each other. 
Some of those who deny this theory of poverty as a cause of 
crime regard these individual weaknesses as defects of character 
for which the individual is to blame from a moral or religious 
point of view. Some of the writers who deny this theory are 
criminal anthropologists or other scientists who regard these 
weaknesses as abnormal and pathological traits for which the 
individual is not to blame in any moral or religious sense. This 
is a difficult problem which can be solved only by means of a 
study of the economic organization of society, which I shall 
discuss later in this chapter. 

Occupational Distribution of Criminals 

The occupational distribution of criminals throws a good 
1 Some of these statistics are to be found in W. A. Bonger, op. cii., pp. 436- 
439- 



82 CRIMINOLOGY 

deal of light upon their economic status. The following table 
gives this distribution for Germany during the years 1890 to 
1894: - l 

Occupation and Criminality in Germany, 1 890-1 894 

To 100 Adults of the 
Of 100 Persons Convicted Total Population there 

of Crime there Belonged to were in 1895 (Statistics 

the Following Occupations of the German Empire, 

Vol. Ill) 
Agriculture, Forestry, ( Independent 4.7 7.0 

Hunting, and •< Assistants 18.9 15.6 

Fishing ( Relatives 2.3 1 . 21 

Industries, ( Independent 6.4 5.6 

Mining, and < Assistants 30 . 4 17.0 

Building Trades { Relatives 4.4 14 . 5 

Trade and Commerce, ( Independent 5.7 2.3 

including Hotels ■< Assistants 5.8 4.1 

and Public Houses ( Relatives 1.2 4.6 

Public and Court Service, ( Actively Engaged 1.3 2.2 

Liberal Professions ( Relatives 0.17 1.8 

Domestic K Actively Engaged 1.6 4.3 

Servants \ Relatives 0.02 0.2 

Workmen, J Actively Engaged 10.4 0.6 

Trade not given \ Relatives 1.8 0.4 

Without Occupation, and f Independent 4.6 5.8 

Occupation not given ( Relatives o. 27 1.9 

The following table gives the occupational distribution in 
Italy during the years 1891 to 1895: — 2 

Occupation and Criminality in Italy, 1891-1895 

Convicts 
Groups of Occupations Annual Average to 100,000 

of each Group of Occupations 

Agriculture ... 1,009 . 03 

Manufacturing, arts and trades 855 . yS 

Commerce, transport, navigation and fishing 1,677 . 46 

Domestic service 410 . 96 

Employees, liberal professions, capitalists, pensioners. . 288. 58 

1 Adapted from a table in G. Aschaffenburg, Crime and Its Repression, 
Boston, 191 3, p. 66. The figures are taken from the Statistik des Deutschen 
Reichs, Neue Folge, LXXXIX, II, p. 48. 

2 Cited in W. A. Bonger, op. cit., p. 446, from the Italian judicial and penal 
statistics. As the calculations are based upon the census of 1881, the table 
is rather inaccurate. 



THE ECONOMIC BASIS OF CRIME 83 

The last table seems to indicate that criminality is very prev- 
alent in the commercial occupations, is moderately prevalent 
in agriculture, manufacturing and the trades; but is low among 
domestic workers, and is very low in the liberal professions. 
But this table is misleading in certain respects, as is indicated 
by the preceding table which furnishes the facts in greater de- 
tail. According to that table, in Germany in the agricultural 
group criminality is high among the employees, but is low among 
the employers. In other words, the farmer who owns his farm 
is not likely to become criminal, but the farm laborer who hires 
out his services is much more likely to become criminal. In 
similar fashion, in the industrial group the employees are much 
more criminal than the employers. In the commercial group, 
on the contrary, the independent commercial workers seem to 
be far more criminal than the commercial employees. The high 
figure for the independent commercial workers is probably due 
to the fact that there are many small merchants and petty 
tradesrnen who are prone to commit certain kinds of crimes. 
For example, according to the German statistics upon which 
the table in question is based 59.8 per cent of the usurious of- 
fenses were committed by this group, despite the fact that this 
group contained only 2.3 per cent of the total population. Other 
crimes which are common in this group are fraud, perjury, 
receiving stolen goods, etc. 

Both of the above tables indicate that criminality is not prev- 
alent in domestic service and in the liberal professions. The 
low percentage of crime among domestic servants is probably 
due to the fact that they are usually well cared for in the homes 
of their employers, and are not subjected to as many tempta- 
tions to commit crimes as persons engaged in most of the other 
occupations. 1 The low percentage of crime in the liberal pro- 
fessions is doubtless due to the facts that those engaged in these 
professions are usually well educated, and are economically 
at least moderately well-to-do. 

The occupational distribution of criminals also seems to 
reveal the pressure of poverty and other forms of economic 
hardship as causes of crime; though here again it may be true, 

1 The above statistics and many others like them show how erroneous is 
the exaggerated estimate of the extent of crime among female domestic 
servants in R. de Ryckere, La servante criminelle, Paris, 1908, p. 2. 



84 CRIMINOLOGY 

as I have mentioned above, that crime and poverty are results 
of a common cause and are not causes of each other. By means 
of an intensive study of each occupation it would be possible 
to show how it gives rise to specific forms of criminality, and 
how each occupation is more or less characterized by certain 
kinds of criminality. 1 

Professional Criminality 

The fourth method of studying the influence of economic 
factors which I shall use is by means of investigating profes- 
sional criminality, namely, the criminality of those who make of 
the committing of crimes a profession and an occupation. It is 
evident that in professional criminality the economic motive 
is predominant, since the criminal is making his livelihood 
entirely or in part illegally in a criminal career, just as other 
persons gain their livelihoods legally in non-criminal ways. 

It is impossible to estimate with any degree of accuracy the 
extent of professional criminality. On account of their greater 
skill as criminals, in all probability more of the professional 
criminals escape punishment than of the other types of crimi- 
nals. For example, mentally defective and insane criminals, 
and criminals by passion are much more likely to get caught 
than professional criminals. On account of their lack of experi- 
ence occasional criminals are more likely to get caught than 
professionals. Some of these occasional criminals with further 
experience become professionals. 

We have, therefore, reason to believe that the number of 
professionals in prison at any time constitutes only a part, and 
perhaps only a small part, of the total number of criminals of 
this type. 2 If we bear in mind that a considerable proportion, 

1 "Le crime professional des sages-femmes: c'est l'avortement; celui des 
agents de change: la fraude et l'usure; celui des magistrats: la partialite; 
celui des hommes politiques: la corruption; celui des publicistes: la calomnie." 
(E. Laurent, Le criminel, Paris, 1908, p. 125.) 

2 The notorious French professional criminal, Leblanc, testified as follows 
with regard to the number of professionals in prison: "I know very well that 
we have risks to run, that the police and the courts are at hand, that the 
prison is not very far distant; but out of eight thousand thieves in Paris, 
you never have more than seven or eight hundred in jail; that is not a tenth 
of the whole. We enjoy, then, on the average, nine years of liberty to one 



THE ECONOMIC BASIS OF CRIME 85 

perhaps as many as half of those in prison, are professionals, 
we can readily see that the total number must be very large. 
Several comments should be made which are of significance in 
this connection. 

In the first place, as I have already had occasion to remark, 
a good many crimes such as petty thefts are committed which 
never become known, either because the loss is never discovered 
or because it is not recognized as a theft. In the second place, 
a good many crimes become known for which no one is tried 
because no evidence can be found. * In the third place, a con- 
siderable proportion of the cases which come before the criminal 
courts end in dismissal or acquittal. In many of these cases a 
crime has unquestionably been committed. In the fourth place, 
in a few cases in which both the crime and the criminal are 
known the case never comes into court because the victim re- 
fuses to make a complaint, either in order to avoid the annoy- 
ance of having to testify, or out of a kindly feeling towards the 
offender. 

In the last type of case mentioned the offender may be 
a servant or employee whom his master or employer does 
not want to prosecute. But in all of the other cases the 
criminal is likely to be a professional who is escaping de- 
tection and punishment through his skill as a criminal. It is 
true that some of those who may be called professional criminals 
are very stupid and are frequently caught. They are usually 
on the borderline between the professional and the mentally 
defective criminal. But the higher type of professional criminal 
who is skillful as a criminal, though he may not be skillful in 
any other way, is responsible for a considerable proportion of 
the crimes committed, and yet escapes punishment much of the 
time. 

Economic factors are doubtless very powerful in creating the 
professional criminal. Some of these criminals, perhaps many 
of them, possess weaknesses and defects of character which 
have played some part in leading them into criminal careers. 
Economic and other social forces may have been the sole causes 

in prison." (M. Girguet, Memoires, Paris, 1840. Quoted in W. A. Bonger, 
op. cit., p. 586.) 

1 See G. Tarde, " Les delits impoursuivis," in his Essais et melanges so- 
ciologiques, Lyons, 1895. 



86 CRIMINOLOGY 

of the criminality of other professional criminals. But even in 
the cases where defects of character are partly responsible, 
economic forces also are almost invariably at work, and in many 
of these cases better economic conditions would have restrained 
the defects of character from giving rise to criminality. 

To put it still more concretely, it is economic pressure in early 
youth in the form of a struggle for subsistence or for a higher 
standard of living, and resulting usually in inadequate intellec- 
tual and moral training and association with bad companions, 
which forces or, to say the least, leads many of these professional 
criminals into their first crimes. Many of these would never 
pass beyond occasional criminality were it not for the cor- 
rupting influence of the prisons, most of which are training 
schools for crime and make many of these beginning criminals 
into full-fledged professionals. 1 

Influence of Economic Organization, upon Crime 

We have now studied the influence of economic forces upon 
criminality by correlating economic changes as revealed by 
fluctuations in prices and wages with changes in the extent of 
criminality, by ascertaining what crimes are apparently im- 
mediately due to economic motives, by ascertaining the economic 
class and occupation of the criminals, and by investigating 
criminality as an occupation and profession. All of these meth- 
ods of study have shown that the influence of the economic 
factors is very great, though it is impossible to measure it ac- 

1 Bonger characterizes the etiology of the professional criminal as follows: 
"Except for a few subsidiary circumstances the life of the professional 
criminal may be summed up as follows. With very rare exceptions he springs 
from a corrupt environment, perhaps having lost his parents while still very 
young, or having even been abandoned by them. Being misled by bad 
company, he commits an 'occasional' theft while still a child, for which he 
must pay the penalty of an imprisonment; he may at times owe his entrance 
into prison to a non-economic misdeed. This, however, is a very rare excep- 
tion. As we have remarked above, prison never improves him, and generally 
makes him worse. If he is in contact with the other prisoners, among whom 
there are naturally a number of out and out criminals, he hears the recital 
of their adventurous life, learns their tricks and all that he still needs to 
know to be thoroughly informed as to ' the profession.' Nor will the separate 
cell be any more profitable to him, brutalized as he already is by his earlier 
environment." (W. A. Bonger, op. cit., p. 581.) As a socialist Bonger fails 
to give sufficient weight to defects of character. 



THE ECONOMIC BASIS OF CRIME 87 

curately at any point. It will, nevertheless, be worth while, 
before closing this chapter, to survey briefly the economic or- 
ganization and condition of society in order to characterize 
and estimate in a general way these economic forces for crime. 
I have discussed this subject at length in another work from 
which I will reproduce the following passages: 

"Perhaps the most striking feature of the existing economic 
organization of society is that under the regime of private busi- 
ness enterprize the greater part of the means of production is 
owned by a comparatively small number of individuals, while 
the immediate control of most economic activities is in the 
hands of a still smaller number of individuals. The result is 
that most of the workers are put at a decided disadvantage in 
securing their share of the amount produced by society. Since 
the beginning of the modern industrial organization, and per- 
haps for a much longer period, the workers have not been able 
to influence to any great extent their share in the distribution of 
wealth. This has been determined by such factors as the rich- 
ness of the natural resources, the density of the population, the 
accumulation of capital, the form of business enterprize, etc.; 
all of which are factors over which they have had little or no 
immediate control. In view of this fact it is not surprizing that 
there is the great inequality in the distribution of wealth and 
the enormous concentration of wealth in the hands of a few 
which we have discussed in an earlier chapter. 

"Another significant feature of modern economic organiza- 
tion is the great instability of industry. The principal illustra- 
tion of this instability is to be found in the alternation between 
the periods of depression and of prosperity which takes place 
in the trade cycle. But at all times there is more or less in- 
stability, since industrial concerns are failing, or are overproduc- 
ing and thus preparing to fail. The fundamental cause for this 
instability is the difficulty of obtaining an adjustment between 
the supply of and the demand for economic goods. Now it 
goes without saying that this difficulty has always existed, and 
always will exist to a certain extent. But in the past society 
was organized in the main in small communities which were 
more or less self-sufficing economically. Consequently, pro- 
ducers were in close touch with the consumers of their products, 
and could adjust their output more or less accurately to the 



88 CRIMINOLOGY 

demand. Under the present large scale, machine system of 
production it takes a great deal of capital to start most industrial 
enterprizes, and in many cases takes the producers a long time 
to discover the nature and extent of the demand for their goods. 
Consequently, the chances for overproduction and for business 
failure are greatly increased. The results are a vast amount of 
unemployment for the workers, and bankruptcy for many capi- 
talists anp! enterprizers. 

"Another cause of poverty which should be prevented as far 
as possible is the waste of economic goods. Whether or not there 
is proportionately more waste now than there has been in the 
past, it would be difficult to determine. But it is not important 
for our purpose to decide this question. What is important is 
to determine the causes of waste, and to discuss how they may 
be removed. It is evident that the instability of industry men- 
tioned above causes a great deal of waste, through the loss of 
labor force and the dissipation of capital. A good deal is wasted 
through excessive luxury and extravagance in consumption. 
Advertizing constitutes an enormous waste in modern society, 
while the middlemen and hangers-on of our industrial system 
cause still more waste. Many more forms of waste might be 
enumerated had we the space to do so. 

"The amount produced by society could be greatly increased 
if the efficiency of the workers were improved. By means of 
vocational training, scientific management, etc., workers could 
be distributed in industry more nearly in accordance with their 
natural aptitudes, and would be far more efficient because they 
would do their work by means of scientific methods. But to in- 
crease the efficiency of the worker is not sufficient if he is not 
given an opportunity to work. It would also be necessary to 
increase the opportunities for production, so that all of the hu- 
man talent available could be used in the industrial system." * 

Poverty and Crime 

Among the results from this faulty organization of society are 
poverty and its attendant conditions. "In every large city are 
to be found the districts of congested population. Here are the 
dwelling houses and tenements in which many of the poor are 
crowded and live in conditions which are uncomfortable and 
1 Poverty and Social Progress, New York, 1916, pp. 358-9. 



THE ECONOMIC BASIS OF CRIME 89 

insanitary. The furnishings of these homes usually are in- 
sufficient for comfort and for health. The food is inadequate 
and of poor quality. The results from these conditions are to be 
found in physical weakness and widespread disease. As a con- 
sequence, the adults are inefficient at their work, and the chil- 
dren unable to learn with facility in the schools. These are the 
districts in which the morbidity and mortality rates are high. 
Frequently also they are the districts in which the rates for 
crime and intemperance are high. It goes without saying that 
forces for crime and intemperance are to be found everywhere in 
human society. But there is no doubt that the conditions of the 
poor stimulate both of these evil tendencies. This is peculiarly 
true of intemperance. It is in the main the misery of the poor 
which impels them to seek the temporary relief furnished by 
alcoholic beverages, thus inevitably leading them to a far worse 
state of misery. 1 Thus it is that intemperance, which is to so 
great an extent a result of poverty, becomes as well a potent 
force for poverty. 

" Under these conditions it is hardly possible for the family 
life to develop to its fullest extent. On account of lack of leisure 
and of the necessary facilities, both the children and the adults 
fail to get a sufficient amount of recreation. For similar reasons 
there is obviously little opportunity for cultural development 
among the poor. 

"Nor are these conditions limited to large cities, for they are 
to be found also in hovels on the outskirts of small towns and 
villages, and even in the open country. Furthermore, most of 
these conditions characterize the homeless vagrants and men- 
dicants who wander from place to place, usually in greater 
destitution than the poor who have homes. 

"The results of these conditions to the poor themselves can 
perhaps be best summed up in the one word misery. But there 
are several evil results from poverty to the rest of society. Even 
though there are certain individuals who profit from the misery 
of the poor, society as a whole suffers from poverty in various 
ways. As we have already noted, the prevalence of disease, 
crime and certain kinds of vice is stimulated by poverty, and, 
as all of these evils are more or less contagious, their prevalence 

1 See, for a discussion of this subject, a monograph by the present writer 
entitled Inebriety in Boston, New York, 1909. 



90 CRIMINOLOGY 

is by no means limited to the poor themselves. The cost of car- 
ing for many dependents who might be self-supporting, and of a 
considerable number of criminals whose crimes are due to 
poverty, falls upon society as a whole. Looked at from the 
esthetic point of view, the presence of poverty is a blot and an 
eyesore upon civilization, and the life of society as a whole will be 
raised to a higher plane and made more refined if this blot can 
be removed." x 

We can now discern how these features of the present eco- 
nomic organization of society influence crime. The unsettled 
economic conditions due to the trade cycle are reflected in the 
correlation between fluctuations in prices and wages and changes 
in the extent of crime. The great inequality in the distribution 
of wealth, as indicated by the vast difference in the economic 
welfare of the poor and the rich, is reflected in the great disparity 
between the criminality of the poor and of the wealthy classes, as 
indicated by the economic status of the criminals. 

These economic conditions bring a good deal of pressure to 
bear upon many individuals to commit criminal acts. Many of 
the weaker individuals, and some of the stronger ones as well, 
are certain to yield to this pressure. In some cases this pressure 
arises out of a lack even of the means of subsistence, so that the 
individual faces starvation. In a larger number of cases the 
pressure arises out of a desire for a higher standard of living, or, 
at any rate, what the criminal regards as a higher standard. 
Some writers assert that privation is rarely ever the cause of 
crime, because the destitute person will not usually steal the 
food or the clothing which he actually needs. 2 But this fact 
does not disprove that privation is the cause of many of these 
crimes, for under many circumstances it would be inconvenient 
to steal the necessary articles, and much more profitable to steal 
something else of greater value, and then to secure with the 
proceeds of the theft the things actually needed. 

The immediate causes of the condition of poverty or relative 

1 Poverty and Social Progress, pp. 225-7. I n this book I have discussed 
at length the causes of poverty, such as unemployment, low wages, the 
pressure of population upon the means of subsistence, etc., and the reme- 
dial and preventive measures by means of which poverty can be lessened 
and prevented. 

2 For example, H. Joly makes this mistake in his La France criminelle, 
Paris, 1889, pp. 357-8. 



THE ECONOMIC BASIS OF CRIME 9 1 

poverty which gives rise to this economic pressure are numerous. 
Among the principal ones are the large amount of unemployment 
which is caused mainly by the instability of industry, and the 
low wages which result largely from the weak position of the 
worker as compared with the position of his employer. Out of 
poverty grow pauperism, mendicancy and vagrancy, which are 
frequently in themselves forms of crime, and still more fre- 
quently lead to crime. 

But it is not only the economic pressure upon the poor which 
leads to crime, but also the pressure upon many individuals who 
are not poor, or, at any rate, are poor only as compared with the 
wealthy. In these cases the pressure takes the form of a desire 
for a higher standard of living. This accounts for most of the 
numerous crimes committed by the class of small merchants and 
traders. It also accounts for the crimes involving much larger 
amounts of money committed by big speculators, fraudulent 
bankrupts, clever swindlers and exploiters of the public. From 
these criminals we pass by imperceptible degrees to the profes- 
sional criminals, whose careers are determined to a large extent 
by economic considerations. 

I have already proved that the criminal record of wealthy 
classes is far below that of the poorer classes. But while great 
wealth does not encourage criminality, it may lead to a good 
deal of vice. This is most likely to happen when it is not ac- 
companied by culture and refinement. It frequently leads to 
excessive indulgence in alcoholic liquors, though not for the same 
reasons as in the case of the poor. It leads to various other 
forms of riotous living which are possible only for the rich, and 
the desire for which is stimulated by the satiety which arises out 
of great luxury. 



CHAPTER VII 
THE POLITICAL BASIS OF CRIME 

Political organization and crime — Theories of government — Govern- 
mental responsibility for crime: inefficient and corrupt government — 
Influence of war and militarism upon crime. 

In one sense it is true that crime is due entirely to political 
factors. As I have stated in an earlier chapter, there could be 
no crime in the strict sense of the term without political organiza- 
tion. Not until government came into being could certain acts 
be stigmatized by the law as criminal. Consequently, the na- 
ture of the acts which are criminal at any time and place will be 
determined in large part by the nature of the political organiza- 
tion. 

Under a monarchical system of government the penal law will 
jealously safeguard the rights and interests of the reigning 
dynasty, and the stronger and the more despotic the monarch 
the larger will be the portion of the penal code which is devoted 
to offenses against him. In similar fashion under an oligarchy 
the penal code will be devoted largely to safeguarding the rights 
and interests of the dominant class. To the extent to which the 
government is democratic it will be devoted to protecting the 
interests of society as a whole. 

Furthermore, the political organization of the world as a 
whole is of significance in this connection. At present nation- 
alism reigns supreme, and promotes a vast amount of warfare, 
the effect of which I shall discuss presently. If the world ever 
passes from the regime of nationalism to internationalism, and 
something in the nature of a world state is established, this 
great change will doubtless influence the penal code. 

But in addition to prescribing what acts are to be stigmatized 
as criminal, the government and the political organization 4 in 
general are among the numerous factors which determine how 
many crimes are to be committed, and by whom, they are to be 
committed. The government is a direct cause of crime when it is 



THE POLITICAL BASIS OF CRIME 93 

maladministered in such a fashion as to be an immediate factor 
for criminal conduct. It is an indirect cause of crime to the 
extent to which it creates conditions which encourage criminal 
conduct and fails to provide conditions which would prevent 
such conduct. I shall discuss first the indirect influence of 
government. 

Political Organization and Crime 

It is evident that the way in which the government is or- 
ganized and the nature of the laws promulgated and enforced 
by it will have some effect upon economic and other social condi- 
tions. But the opinion of any one as to the extent to which 
these conditions can and should be influenced by the govern- 
ment, and consequently the extent to which the government 
can be held responsible for criminal conduct, will depend upon 
his theory of the functions of government. There have been 
many of these theories which may be briefly classified and de- 
scribed as follows. 

At one extreme is the individualistic type of theory according 
to which the only function of government is to regulate the con- 
duct of the individual to the minimum degree necessary for the 
maintenance of order, but to undertake no economic or other 
social functions whatsoever. This type of theory is represented 
by the laissez faire philosophers. At the other extreme is the 
socialist theory of government according to which the govern- 
ment shall own and operate all economic enterprizes, so that all 
economic activities shall be political as well as economic in their 
character. Between these two extremes are many theories, 
some of which are more or less individualistic in character, and 
others are more or less socialistic. . The representatives of these 
theories usually assume the welfare of society as the criterion of 
governmental activity, so that these theories may be called 
social welfare theories of government. Each of these theorists 
contends that the government shall extend its economic ac- 
tivj£jes as far as he thinks will be conducive to social welfare. 
Consequently, according to the different social welfare theories 
the government should extend its economic activities in varying 
degrees, and the more socialized theories permit of extensive 
governmental activity approaching that of the socialist state. 



94 CRIMINOLOGY 

According to the individualistic theory the state is not at all 
or only to a very slight extent responsible indirectly for criminal 
conduct. It is directly responsible for such conduct to the extent 
to which it fails to maintain order. According to the social wel- 
fare theories the state is responsible indirectly for criminal con- 
duct to a varying degree. According to the socialist theory it is 
almost entirely responsible, both directly and indirectly. The 
theorists of the individualistic school usually assume that crim- 
inal conduct is inevitable and permanent, because it arises out 
of immutable human traits which cannot be influenced by polit- 
ical means. The socialists insist that criminal conduct is largely 
preventable, and would exist only to a slight extent under the 
socialist state. 

It is impossible to discuss these theories at length here, since 
they involve very complicated and perplexing problems. Polit- 
ical organization is in large part a reflection of economic and 
social conditions in the past, but it becomes in turn an important 
factor in determining these conditions in the present. All of the 
civilized governments of today are based upon social welfare 
theories, though they differ considerably amongst themselves 
as to the extent to which they extend their economic and other 
social activities. We shall, therefore, assume for the present 
the general point of view of the social welfare theories and glance 
briefly at the ways in which the government is indirectly re- 
sponsible for some of the criminal conduct. 

Governmental Responsibility for Crime 

Public sanitation and hygiene are necessarily in the hands 
of the government, and the extent to which and the efficiency 
with which they are cared for determines in part the health 
and physical well-being of the populace, which in turn reacts 
upon criminal conduct. The construction and arrangement of 
dwelling-houses and other buildings in towns and cities is 
regulated by the government, and this regulation and planning 
affects materially the living conditions of the inhabitants. . The 
extent to which and the efficiency with which educational 
facilities are furnished by the government affects materially 
the intellectual traits of the people. The manner in which and 
the extent to which the use of alcoholic liquors, drugs, and other 



THE POLITICAL BASIS OF CRIME 95 

noxious substances is regulated and restricted by the govern- 
ment has more or less influence upon criminal conduct. 

All of the above measures are now performed to a greater or 
less degree by civilized governments. The state may also be 
indirectly responsible for some criminal conduct by imposing 
oppressive restrictions upon its citizens. For example, rigid 
marriage laws lead to rape and other sexual crimes, while free 
marriage and divorce encourage satisfactory sexual and domestic 
conditions. 

But beyond these measures are measures which reach much 
further, and which are intended to bring about much greater 
changes in society. Some of these measures have been adopted 
by many of the civilized governments of the world. Several of 
these measures are intended to change the distribution of wealth 
so as to make it more equal. Among these measures are various 
forms of taxation, wage legislation, price legislation, etc. Other 
measures are directed towards stabilizing commerce and in- 
dustry, so as to eliminate as far as possible the fluctuations and 
instability described in the last chapter. Among these measures 
are the organization of the banking system, the regulation and 
restriction of speculation, the prevention of private monopolistic 
control, etc. All of these measures are more questionable in 
their character, in the first place, as to whether they are com- 
petent to attain the objects towards which they are directed, 
and, in the second place, as to whether they will lessen the 
amount of criminal conduct. I have not the space to discuss 
these problems, but will point out the dangers involved in all 
such legislation so far as it bears upon criminal conduct. 

In the first place, it is evident that by creating more laws new 
opportunities for the violation of laws are brought into existence. 
In this fashion the total number of criminal acts may be in- 
creased. However, this is not necessarily an evil in the long run 
in the case of a specific law, for the law may do more good in 
other ways than it does evil by increasing the number of crimes. 
In many cases this is a difficult question to decide. In similar 
fashion the abolition of restrictive legislation may lessen the 
number of violations of laws. But the restrictions may be of 
more value to society than the decrease in the number of the 
violations of the law. 

In the second place, much legislation and regulation on the 



96 CRIMINOLOGY 

part of the government may lead to an excessive amount of 
restriction and social control. This is an evil in itself, for all 
forms of social control are evil in the sense that they restrict the 
individual, and should therefore be tolerated only to the extent 
that they are absolutely necessary for the welfare of society. 
But it may prove to be an evil also by discouraging individual 
initiative unduly, and thus decreasing the total amount of 
human achievement. This may indeed prove to be the greatest 
evil arising out of too much legislation. At various points in 
this book I shall have occasion to mention these dangers with 
respect to certain forms of legislation and governmental regula- 
tion. 1 

There are many ways in which the government is a direct 
cause of crime. It may give rise to crime because it is a bad 
form of government, or because, even though a good form of 
government, it is badly administered. The excellence of the 
form of the government will depend largely upon the place and 
time in which it exists. A form of government which is excellent 
for a barbarous people may be very undesirable for a highly 
civilized people. Consequently, it is impossible to generalize 

1 Two eminent Italian criminologists, Ferri and Garofalo, represent the 
opposing points of view with respect to the limitations upon legislation and 
governmental regulation. Ferri advocates a large number of measures 
which he calls "substitutes for punishment" {sostituthi penali), or "equiva- 
lents of punishment" {equivalents des peines). It would be more correct to 
call them "preventives of crime." Among these are free trade, freedom 
to emigrate, taxes upon the rich, public works, drastic regulation of the 
manufacture and sale of alcohol, freedom of marriage and divorce, etc. 
(E. Ferri, Criminal Sociology, Boston, 191 7, Part II, Chap. 5.) 

Garofalo opposes most of these measures on the ground that the state 
is not omnipotent to attain the ends sought. He expresses his opinion with 
respect to the limitations upon legislation as follows: "In the prevention of 
crime, legislative measures of general application cannot go beyond the 
maintenance of a good police system, the wise administration of justice, 
and the indirect development of a public moral education which will tend 
to counteract certain vicious habitudes ordinarily the cause of crime. Upon 
these habitudes it cannot act directly except in some special cases, as in 
the regulation of liquor-selling, gambling, and the carrying of arms. Aside 
from such instances, the state should be careful how it interferes with the 
individual rights of the citizen. For notwithstanding the laudable object 
which moves it to act, its interference is bound to develop abuses, to de- 
generate into unendurable violation of personal liberty, and to be produc- 
tive of new disobediences on the part of the citizen." (R. Garofalo, Crimi- 
nology, Boston, 1914, pp. 189-190.) 



THE POLITICAL BASIS OF CRIME 97 

with respect to the form of government. In similar fashion, 
the excellence of the administration will depend in part upon the 
place and time. 

Political corruption in the administration of the government 
is in itself a form of crime. Even when it is not criminal in the 
technical legal sense, it is at least vicious. But it is far more in- 
jurious as a cause of crime because of the gross inefficiency it 
introduces into the administration of the government. It 
usually arises partly out of the form of the government, which 
fails to furnish a sufficient number of checks and safeguards 
against dishonesty, and partly out of the state of public opinion 
and public morals, which breeds the corrupters and does not 
sufficiently reprehend their dishonesty. When this corruption 
becomes extensive, it usually weakens the police by destroying 
its morale, it may invade the courts of public justice, and is very 
likely to promote inefficiency in the administration of the penal 
institutions. In these ways it vitiates largely the efficiency of the 
law in suppressing crime. 

In addition to the evil influence of political corruption the 
administration of the law may be greatly weakened and vitiated 
by other causes. The police force frequently is weak and in- 
efficient because it is not properly trained and organized. The 
so-called "police system" of corruption may grow up within the 
police department itself because impossible tasks, such as un- 
enforceable laws against vice, have been laid upon the police 
by the legislature and the public. Nothing can be more disas- 
trous to the effective suppression of crime than the weakening 
and corrupting of the police agency, which is the physical arm 
of the law for its own enforcement. 

The law has usually been unscientific inasmuch as it has not 
been based upon the available scientific knowledge as to the 
causes of crime and the traits of the criminal. This knowledge 
can be used so as to render much more effective both the sup- 
pression and the prevention of crime. The government has 
failed to gather and make use of statistics which would be of 
great value in measuring the effects of the different kinds of 
penal treatment, as well as by throwing much light upon the 
causes and conditions of crime. 

The courts have frequently been weak and inefficient. This 
has been due in part to political influence, whether corrupt or 



98 CRIMINOLOGY 

otherwise. But it has probably been due more to the fact that 
the judges have usually not been trained and selected in a proper 
manner. It has also been due in large part to abuses of the 
jury system, and perhaps to a large extent to fundamental 
defects in the jury system itself. 

Methods of penal treatment have usually been inefficient, and 
frequently have been so bad as to cause more crime than they 
have suppressed and prevented. Punishment has usually been 
based upon vengeance, which cannot furnish a rational criterion 
of the efficacy of penal methods. In recent' times it has been 
based to a considerable extent upon the principle of deterrence. 
But inasmuch as accurate, scientific methods of measuring the 
extent to which punishment actually deters have not been ap- 
plied, it has been impossible to ascertain whether or not any de- 
terrence has been attained. Capital punishment, torture, im- 
prisonment of various sorts, transportation, etc., have proved 
more or less ineffective in various degrees, and have stimulated 
a good deal of crime in several ways. Certain methods, such as 
the method of reparation, which may prove to be effective, have 
been tried very little or not at all. In fact, the whole subject 
of penal treatment needs a thoroughgoing scientific study on 
the basis of an extensive knowledge of the causes of crime and 
of the traits of the criminal. No government has as yet done 
much towards making such a study. 

But not only is the administration of penal law of importance 
for the prevention of crime. If the civil law is not efficiently 
administered, its maladministration is likely to lead to at least 
a few crimes, while an efficient administration of the civil law 
is a more or less powerful preventive of crime. If the civil law 
is maladministered, dissensions and conflicts are sure to arise 
between some of the litigants or would-be litigants, and in 
some cases lead to crimes against the person or against property 
or both. An efficient administration of justice in the civil 
courts, on the contrary, obviates most of these differences, and 
promotes a spirit of harmony and good will in the public at 
large which is likely to prevent some crimes. For the attain- 
ment, therefore, both of penal and of civil justice it is important, 
in the first place, that the civil law be based upon rational, 
scientific principles, and, in the second place, that the civil courts 
administer the civil law efficiently. 



the political basis of crime 99 

Influence of War and Militarism upon Crime 

Before finishing this discussion of the political factors for 
crime I wish to touch briefly upon war and militarism in rela- 
tion to crime. In the present day war arises largely out of the 
prevailing national political organization of the world. If the 
present regime of nationalism is ever superseded by an inter- 
national political organization, such as a world state, much of 
this warfare will perforce disappear. However, that time is 
probably still far distant, so that it is important to consider the 
influence of war and militarism upon crime. 

The effects of war are so complicated that it is difficult to 
analyze and measure them accurately. There is reason to be- 
lieve that war has both favorable and unfavorable immediate 
effects upon crime. But there is much difference of opinion 
as to whether its ultimate effect is favorable or unfavorable. 

Statistical records indicate that criminality frequently dimin- 
ishes apparently during time of war. This doubtless is due in 
large part to the fact that many of those who would otherwise 
be engaged in criminal activity volunteer for military service 
or are drafted into the army. Consequently, their criminal 
tendencies towards murder, theft, etc., are furnished an outlet 
in the opportunities to kill, to plunder, etc., in the course of 
warfare. War therefore becomes, in a measure, a substitute for 
crime for these persons. But this apparent diminution of crimi- 
nality during time of war is probably due in part to the fact 
that the repression of crime is usually weakened during time of 
war, so that many crimes are not pursued and punished. This 
may explain why the criminality of women and of children as 
well as of men sometimes appears to diminish during time of 
war. 

Some writers, however, contend that war diminishes crime 
by acting as a moral influence. Their opinion is that war stim- 
ulates a condition of emotional excitement under which many 
desires and impulses which would otherwise assume a criminal 
form are turned into patriotic, national, and social channels, 
and results in efforts in behalf of the public welfare. 1 War also 

1 Tarde expresses a similar idea in the following words: "The truth of 
the matter is that crime has become an evil without anything to compen- 
sate for it since it has advantageously been replaced by militarism and 
warfare. An army is a gigantic means of carrying out, by massacre and 



IOO CRIMINOLOGY 

stimulates greatly the virtue of courage and leads to many 
deeds of valor. There is probably a measure of truth in this idea, 
especially when the war is for the purpose of carrying out a great 
popular ideal. But it must be remembered that warfare in- 
evitably engenders a vast amount of hatred and vengeance 
towards enemies, which probably more than counterbalances 
this so-called moral influence of war. 

Militarism has an influence upon crime during times of peace 
as well as during wartime. Military service is reputed to have 
both a moral and an immoral influence upon conscripts and 
volunteers. It is believed by some persons that military train- 
ing furnishes an excellent discipline for the character. It doubt- 
less encourages to a certain extent the virtues of obedience, 
orderliness, regularity, etc. But, on the other hand, military 
organization is necessarily of such a nature as to develop servil- 
ity in the common soldiers and a domineering spirit in the officers. 
It also tends to develop contempt for and brutality towards 
the common civilian class. 

Furthermore, the conditions under which military service is 
usually performed are bad, especially for the young conscripts. 
These youths are torn away from their homes at a period of life 
when they are likely to form bad habits. They are thrown into 
the garrison life in large cities and elsewhere in which they may 
easily acquire vices and diseases which will affect their conduct 
for evil throughout the remainder of their lives. 

It goes without saying that the extent to which these evils 
will prevail in military service will depend in part upon the way 
in which an army is organized and the attention which is paid 
to conditions of living for the soldiers by those in charge of the 

pillage on a vast scale, the collective designs of hatred, vengeance, or envy, 
which one nation stirs up against another. Condemned under their in- 
dividual form, these odious passions, cruelty and greed, seem to be praise- 
worthy under their collective form. Why? First of all, because they quell 
many little internal conflicts though they bring about an external one; also, 
because they lead to a warlike solution of this very difficulty, and to the 
increase in territory as a result of the peace which is bound to follow. The 
effect of militarism is to exhaust the criminal passions scattered through 
every nation, to purify them in concentrating them, and to justify them by 
making them serve to destroy one another, under the superior form which 
they thus assume. After all is said and done, war enlarges the sphere of 
peace, as crime formerly used to enlarge the sphere of honesty. This is the 
irony of history." (G. Tarde, Penal Philosophy, Boston, 1912, p. 422.) 



THE POLITICAL BASIS OE CRIME IOI 

army. If an army is as democratically organized as is possible 
for a military body, and if the government provides the best 
possible living conditions for the soldiers, these evils will be 
reduced to a minimum. But even if this end is attained, it is 
doubtful if the benefits derived from military service can coun- 
terbalance its evils. 

It has been asserted by some that the criminality of the 
soldier class is higher than that of the civilian population. But 
this appears doubtful when the criminality of the soldiers is 
compared with that of the male civilian population of about the 
same ages. 1 Wherever it is true, the difference usually is not 
great, and is probably due in part at least to the fact that the 
soldier is guilty of various military offenses, such as insubordi- 
nation and malingering, which the civilian cannot commit. 
It may indeed be true that in some places the criminality of the 
soldier class is below that of the civilian population, owing to the 
strict discipline maintained over the soldiers. This fact, however, 
does not disprove the evil effects of military service, for these 
effects may display themselves later in the lives of the soldiers, 
after their military service is ended. 

Turning to the indirect but much more far-reaching effects 
of war and militarism upon crime, we must note first the spirit 
of lawlessness and violence which is encouraged by a war, and 
which usually persists for some time after the war ends and may 
manifest itself in an increase of crime. The history of every 
nation furnishes more or less evidence of this condition. War 
arouses the passions of hatred, vengeance, and envy, and re- 
quires the committing of many deeds of violence. Consequently, 
it is not surprising that it should lead to this spirit of lawlessness 
and violence. 2 

1 Cf. C. Lombroso, Crime, Its Causes and Remedies, Boston, 191 1, pp. 201- 
202. 

2 The atrocities committed in the course of the great war which is raging 
in Europe and elsewhere at the time of the present writing furnish numerous 
illustrations of the spirit of lawlessness, violence, and cruelty aroused by 
international warfare. It is only necessary to mention the ravishment of 
Belgium, Northern France, Poland, and Serbia, and the massacre of Ar- 
menians in Turkey to realize the truth of this statement. 

The Carnegie Endowment for International Peace appointed an interna- 
tional commission to inquire into the causes and conduct of the Balkan wars 
of 191 2 and 1913. In its report the Commission stated as follows the moral 



102 CRIMINOLOGY 

But the results from war which probably have the greatest 
indirect influence upon crime are the economic effects of war. 
These effects may be briefly stated as follows. 1 

War is almost certain to reduce the aggregate production of 
wealth, thus making society poorer at the end than it was at 
the beginning of a war. This loss is due to the destruction of 
property by military operations and to the cessation in the 
production of wealth during wartime. It goes without saying 
that most of the goods produced for war purposes are worthless 
at the end of a war. This means that, unless something is done 
to distribute wealth more evenly, the working class will be 
poorer at the end of a war. 

Furthermore, the means of production available at the end 
of a war are likely to be smaller. Owing to the reduction in the 
supply of wealth, there is likely to be a shortage of capital. 
Owing to the destruction of human life, there may be a shortage 
of labor. The loss of life caused by war is largely of male adult 
laborers, many of whom are skilled, whose rearing and training 
are therefore lost to society and diminish the productive labor 
force. 

In order to reconstruct what has been destroyed by the war, 
and to raise the supply of wealth to the normal, production is 
almost certain to be brisk after a war, within the limits placed 
by the available capital. Inasmuch as the supply of labor has 

effect upon the nations involved of the atrocities committed in the course 
of these wars: "Reference has already been made to the reflex psychological 
effect of these crimes against justice and humanity. The matter becomes 
serious when we think of it as something which the nations have absorbed 
into their very life, — a sort of virus which, through the ordinary channels 
of circulation, has infected the entire body politic. Here we can focus the 
whole matter, — the fearful economic waste, the untimely death of no small 
part of the population, a volume of terror and pain which can be only par- 
tially, at least, conceived and estimated, and the collective national con- 
sciousness of greater crimes than history has recorded. This is a fearful 
legacy to be left to future generations." {Report of the International Com- 
mission to Inquire into the Causes and Conduct of the Balkan Wars, Washing- 
ton, 1914, p. 269.) 

1 The next few paragraphs are taken in part from my Poverty and Social 
Progress, New York, 1916, pp. 199-201. In that book I have described at 
greater length the economic effects of war. For other discussions of the 
influence of war and militarism upon crime, see, N. Colajanni, La sociologia 
criminate, Catania, 1889, Vol. IT, pp. 572-588; W. Bonger, Criminality and 
Economic Conditions, Boston, 1916, pp. 516-519. 



THE POLITICAL BASIS OF CRIME 103 

diminished, the surviving laborers are likely to get better wages 
and to suffer less from unemployment. In other words, there 
comes a period of prosperity which benefits both the employer 
and the worker. It is indeed a sad commentary upon the eco- 
nomic organization of society that the period immediately 
following a war is frequently much preferable to many a period 
of depression during times of peace. This fact has led many 
to think that war is a good thing, because of the stimulus it 
apparently gives to manufacturing and trade. But it must be 
remembered that industrial activity after a war is largely 
due to an effort to get back to the condition which ex- 
isted before the war, by making good the losses mentioned 
above. 

It must also be remembered that the payment of the cost 
of a war hangs over a people long after the war is ended. No 
modern government can carry on a war very long without rais- 
ing special funds. These funds are secured usually by issuing 
long term bonds, which are purchased in the main by capitalists, 
and upon which interest must be paid for many years. The 
question as to who pays in the end for these bonds depends 
upon the incidence of the taxes by means of which they are 
paid. Up to the present time it is doubtless true that they have 
been paid for in the main by the poorer people, upon whom 
indirect taxes usually fall in the end. So that wars have been 
paid for mainly by the working classes, and one of the results 
of modern warfare has been to furnish another means of trans- 
ferring wealth from the poor to the rich; for these bonds have 
usually furnished safe investments at fairly good rates of profit 
for the capitalists, while for many years after a war the poor 
are contributing heavily to pay the interest to the capitalists, 
and ultimately to pay back the principal. If wars were paid 
for by heavy assessments upon the rich at the time of the war, 
or by the issue of bonds to be paid for by direct taxes upon the 
rich, such as inheritance and income taxes, a war would no 
longer be a force for making the poor poorer by making the 
rich richer; for while the poor would not gain anything through 
the war, they would not lose as much as they do now, and the 
rich would not become richer at their expense. It is probable 
that if such were the case, there would be much less war; because 
the rich usually have much influence with governments, and 



104 CRIMINOLOGY 

under those conditions it would no longer be to the interest of 
the rich to have war. 1 

It is hardly necessary to call attention to the heavy expendi- 
ture between wars caused by military warfare. So long as 
international relations are based on the theory that the eco- 
nomic interests of nations conflict, war will continue to be an 
imminent possibility for every nation. Consequently, every 
nation must maintain itself in a state of preparedness for war. 
This means constant expenditure for munitions and other 
equipments of war, and for the services of righting men who 
are being withdrawn from the production of wealth. And as 
no government can safely, from the military point of view, 
refuse to give pensions, for a long period after every war of 
any extent there must be heavy expenditure for the payment 
of pensions. In most cases these expenditures are paid for by 
means of taxes whose incidence falls upon the poorer classes. 

War and militarism are, therefore, factors for creating eco- 
nomic conditions which, as I have shown in the last chapter, 
encourage crime. They accentuate the inequality in the dis- 
tribution of wealth, and thus swell the size of the poorer classes 
which contribute most heavily proportionately to the criminal 
class. Furthermore, war increases the instability of commerce 
and industry by disturbing the normal processes of manufacture 
and trade. This is well illustrated by the fact that even the 
smaller wars cause world-wide disturbances in the stock markets 
and in the prices of many commodities, while a great war is 
almost certain to bring on a world-wide panic, crisis, and period 
of depression. This instability in economic conditions, by 
rendering the economic status of many persons insecure through 
loss of employment, loss of property, etc., increases the incite- 
ment and the temptation to acquire criminal habits. Further- 
more, the great fluctuations in prices in the stock markets and 
elsewhere furnish shrewd speculators excellent opportunities to 
amass great fortunes, and thus to enhance the inequality in the 
distribution of wealth. 2 

1 As a result of the great war now in progress (191 7) the rich are being 
heavily taxed in some of the belligerent countries. This may prove to have 
a deterring influence upon war in the future, provided the rich do not suc- 
ceed in transferring the incidence of these taxes upon the poor. 

2 See my Poverty and Social Progress, pp. 404-405. 



THE POLITICAL BASIS OF CRIME I05 

In the last analysis, war and militarism impede the progress 
of civilization, and thus delay the coming of a state of society 
in which crime will in all probability be greatly diminished. 
Social progress requires the constant extension of cooperation 
in the form of the division of labor, in order thereby to augment 
the sum total of human achievement. The principle of the 
division of labor has already been applied to a far-reaching 
degree in many fields of human activity, such as economic af- 
fairs, science, art, etc. But unfortunately it has so far been 
applied only to a slight extent in political affairs. Nationalism 
is now the fundamental principle in political organization, and 
stands as a barrier against the division of labor and coopera- 
tion, not only in political matters but also frequently in eco- 
nomic activities. Generally speaking it is a serious hindrance 
to the diffusion of culture, and therefore an obstacle to the 
unification and organization of mankind into a single coherent 
social organism. Not until internationalism supersedes na- 
tionalism, and something in the nature of a world state comes 
into being, can civilization attain the highest possible rate of 
progress. 



CHAPTER VIII 
THE INFLUENCE OF CIVILIZATION UPON CRIME 

Religion and crime — Science and crime — Art and crime — The press 
and crime — The advance of civilization and the increase of crime. 

In the two preceding chapters I have discussed two of the 
most important, perhaps the most important, aspects of civiliza- 
tion in their relations to crime, namely, the economic and the 
political aspects. There are other aspects of civilization and 
other forces at work in our civilization which must be discussed in 
similar fashion. Furthermore, it is essential to discuss the in- 
fluence of the progress of civilization upon crime, in order to 
ascertain what effect it has upon crime, both with respect to 
kind and quantity. 

Religion and Crime 

In Chapter II has been described briefly the influence of magic 
and religion upon the origin and early evolution of crime. Mag- 
ical ideas and religious beliefs determined in large part what 
acts were to be included in the early categories of crimes. With 
the evolution of civilization magical ideas have lost their power 
almost entirely, because of the obvious failure of magical at- 
tempts to coerce and control natural processes, and because ef- 
fective scientific methods have superseded the ineffective mag- 
ical methods. Religion also has lost much of its power, and 
has been superseded by science to a large extent, because of the 
apparent failure of religious attempts to propitiate the alleged 
spiritual beings which are reputed to control the processes of 
nature. However, religion has one great advantage for survi- 
val over magic. 

When religious attempts fail, it is always possible to fall 
back upon the hypothesis that the gods have been unwilling to 
grant the requests of men. Inasmuch as mankind can never 
hope to attain absolute knowledge by means of the most effect- 
ive human method of acquiring knowledge, namely, the method 
of science, it will never be possible to disprove categorically the 



THE INFLUENCE OF CIVILIZATION UPON CRIME I07 

existence of these hypothetical spiritual beings, however far- 
fetched and improbable these hypotheses may be, nor the 
traits attributed to them by religious devotees. Consequently, 
religion still retains a considerable influence which must be dis- 
cussed in relation to crime. 

Representatives of religion frequently assert or imply that 
irreligion is a potent force for crime. It is difficult to measure 
accurately the influence of religion upon crime. But so far as 
reliable statistics are available they disprove this assertion on 
the part of the religionists. For example, Bonger states that 
according to the census of 1879 and 1909 in the Netherlands, 
the percentage of those who were not church members increased 
from 0.31 to 4.97, an increase of over 1,500 per cent in thirty 
years; whereas during the same period crime decreased in ex- 
tent. 1 This indicates that apparently the diminution of religion 
as measured by the decrease in the church membership was, to 
say the least, not causing an increase of crime, if indeed it was 
not lessening the amount of crime. Bonger has also prepared 
the following table, based upon the criminal statistics of more 
than 126,000 individuals sentenced during the period from 1901 
to 1909 in the Netherlands: — 2 

Religion and Crime in the Netherlands, igoi-1909 
Number Sentenced to 100,000 of the Population over 10 Years Old 

Protestant Catholic Jew Not Mem- Total 

bcrs of Any PoPu- 

Religion lation 

All offenses 308.6 416.5 212.7 84.2 337.3 

Theft 40.0 54.8 25.5 9.6 43.9 

Aggravated theft 19.9 24.0 12.7 5.2 20. 7 

Receiving stolen goods 2.6 3.5 9.2 0.7 3.0 

Embezzlement 8.6 9.3 13.1 1.9 8.7 

Fraud 2.4 2.5 j.p 0.4 2.4 

Offenses against public de- 
cency 1.9 3. 4 2.0 0.5 2.4 

Minor sexual offenses 1.2 1.0 0.3 0.2 10 

Rape 1.5 2.2 1.5 0.7 1.8 

Sexual crimes with persons 

under 16 0.3 0.3 0.1 0.0 0.3 

All sexual crimes 5.1 7.1 4.1 1.6 5.7 

Rebellion 25.9 Z7 -° J 3- 2 I2 - 2 2 9° 

Assaults 74.4 q8.2 43.2 20.1 80.1 

Serious assaults 8.5 11.0 3.9 1.9 9.1 

Homicide and murder 0.4 0.6 0.5 0.1 0.5 

1 W. Bonger, Criminality and Economic Conditions, Boston, 1916, p. 208. 

2 W. Bonger, op. cit., p. 209. 



Io8 CRIMINOLOGY 

As Bonger says, the conditions revealed by this table are that 
"the first place is almost always occupied by the Catholics, the 
second by the Protestants, and then come the Jews (except in 
cases of receiving stolen goods, embezzlement, and fraud), and 
the minimum of criminality (in all crimes without exception) 
is shown by the irreligious!" x 

It is, of course, true that church membership is not a perfect 
criterion of religiosity. But it will serve as a rough measure, 
because there are irreligious persons in the churches just as 
there are religious persons who do not belong to any church. 
In fact, if there is any difference whatever in this respect, the 
chances are that there are more irreligious persons who belong 
to churches for family, business, and political reasons, or simply 
through inertia because they were born into them, than there 
are religious persons who do not care to join a church. 

The relative criminality of the adherents of the different 
religions is also of some importance. In Germany, during the 
years 1892- 1901, the average number of persons convicted 
per 100,000 civilians of each faith was: — 2 

1,361 Catholic Christians; 

1,122 Evangelical Christians; 

1,030 Jews. 

The German statistics confirm the Dutch statistics given 
above. The low criminality of the Jews is probably due to the 
fairly high average prosperity of the Jews in both of these coun- 
tries, and to the strong family, racial, and religious organization 
amongst them. As a member of a small and more or less alien 
racial and religious community, there is probably more or less 
social pressure upon the individual Jew to refrain from breaking 
the law in order to avoid bringing hostile criticism upon his 
community from without the group. 

The high criminality of the Catholics is sometimes attributed 
in part to their practise of auricular confession. It doubtless 
happens that some ignorant persons are emboldened to commit 
crimes because they depend upon auricular confession and the 
performance of the penance imposed upon them to absolve them 
from the consequences of their crimes. But in other cases this 
form of confession has probably led to the reparation of crimes, 

1 Op. cit., p. 209. 

2 G. Aschaffenburg, Crime and Its Repression, Boston, 1913, p. 52. 



THE INFLUENCE OF CIVILIZATION UPON CRIME IO9 

or to a restraint upon would-be criminals from committing 
crimes. So that it is impossible to determine whether it has 
encouraged more crime than it has discouraged. There can be 
no doubt, however, that the religious doctrine of the forgiveness 
of sins after repentance has frequently encouraged persons of 
weak character to commit immoral and criminal acts. Whether 
or not this has been more true of the Catholic religion than of 
other religions which hold the same tenet, it is difficult to say. 
It may have as much influence among some of the Protestant 
sects. The Christian doctrine of the forgiveness of sins possesses 
this evil influence because it disseminates the grossly erroneous 
notion that repentance absolves a person from responsibility 
for the immorality of his past conduct. It would be difficult to 
find a more anti-social and immoral religious doctrine. 

A fact which is probably of much greater significance with 
regard to the high criminality of the Catholics is that in Germany 
and in many other countries where both Catholics and Protes- 
tants are numerous the Catholics are not so affluent as the Prot- 
estants. Inasmuch as the poorer classes produce more criminals 
than the wealthier classes, this fact may account entirely for the 
high criminality of the Catholics. However, this is not neces- 
sarily the case, and the religious factor may have considerable 
influence. It may be that Catholicism does not encourage the 
material well-being of its followers as much as Protestantism 
and certain other religions. Or it may be that the Catholic 
religion appeals more strongly to the poor and the ignorant, and 
then reacts upon them so as to increase their poverty and 
ignorance. Certainly the subservient attitude required by the 
Catholic Church of its devotees does not seem calculated to en- 
courage them to acquire knowledge. 

The religious traits of many criminals have been described. 1 
Among them is to be found nearly every type of religionist. So 
far as it is possible to generalize about them, it is probably safe 
to say that their religion is more emotional and more supersti- 
tious than the average. It is evident that it has failed entirely 
or in large part from restraining their criminal propensities, and 
may in some cases even stimulate those propensities. So large a 

1 See, for example, the writings of C. Lombroso, Crime, Its Causes and 
Remedies, pp. 138-144, L'homme criminel, etc.; E. Laurent, Le Criminel, 
pp. 64-70; C. Perrier, Les Criminels; and many other criminologists. 



110 CRIMINOLOGY 

proportion of the criminals are religious that it is the most 
egregious folly to regard religion as a panacea for crime, as 
seems to be the belief of many representatives of religion. 

The above-mentioned facts suggest conclusions which are 
highly probable on other grounds as well. It is not surprizing 
that there is a lower percentage of criminality among those who 
are accounted as irreligious, for this group includes a larger 
percentage than the religious group of persons who think for 
themselves and who, whether religious or irreligious, do not 
accept the authority and tutelage of any religious organization. 
This fact implies a high standard of intelligence and education, 
which is not usually correlated with criminality. This is not 
because intelligence and education are in themselves neces- 
sarily preventives of crime, but because they are likely to place 
an individual in a position in society where the temptations 
towards criminal conduct are comparatively small. 

For similar reasons it is not surprizing that the religions whose 
followers are ignorant and poor display a high percentage of 
criminality. Furthermore, it is not to be expected that religion 
in itself is to display a universal and uniform tendency towards 
discouraging crime, because religions differ greatly amongst 
themselves, and therefore in their influence upon social phenom- 
ena. In order to understand the last statement it will be neces- 
sary to study briefly the broader aspects of religion, and to 
bring to light its indirect and remote effects upon crime. 

The religious teachings received by most persons during 
childhood and early youth usually make a powerful impression 
upon the emotional nature. This impression is probably due in 
the main to the mysterious and mystical features of religion, 
which have this effect through physiological and pyschological 
processes which there is nOt the space to describe here. Espe- 
cially impressionable is the youth at the time of puberty, for at 
that time there reach maturity the sexual organs and processes 
which furnish the most powerful affective stimulants in the 
human organism. If the individual passes through the psy- 
chological crisis which in religious experience is called conver- 
sion, with its accompanying phenomena of repentance and re- 
morse, the impression made by the religious teachings becomes 
all the more indelible upon the mind of the neophyte. 

The significance of the above facts for our purpose is clear. 



THE INFLUENCE OF CIVILIZATION UPON CRIME III 

Every religion contains more or less extensive accretions in the 
way of moral commands and guidance for its adherents. These 
moral teachings receive a powerful dynamic reenforcement from 
the emotional factors in religion. Furthermore, these teachings 
probably receive some reenforcement also from the minatory 
features of religion, namely, from the intimidation attempted by 
nearly every religion by means of threats of supernatural pun- 
ishments. 1 Consequently, it becomes a question of considerable 
moment as to what are the moral teachings of a religion. It 
goes without saying that the religions differ greatly amongst 
themselves in this matter, so that it is difficult if not impossible 
to generalize with respect to them. Some of these teachings are 
genuinely moral in the sense that they promote harmony in 
social relations and the welfare of mankind. Some of these 
teachings are highly immoral in the sense that they instigate 
strife and conflict, and cause untold human suffering and un- 
happiness by enjoining upon the religious devotees militant 
propagandism, asceticism, penitential pain, minatory terror of 
supernatural penalties, etc. 2 

1 The minatory influence of religion has been questioned. It is doubt- 
less not so great as is popularly believed, owing to human heedlessness as 
to the ultimate consequences of their acts. The same trait accounts for 
the limited intimidatory influence of legal penalties. But it is, I believe, a 
mistake to deny it practically all efficacy, as is done by some writers, as, 
for example, J. L. de Lanessan, who says: "En ce qui concerne la crainte 
de l'enfer, il est facile de s'assurer qu'elle n'a jamais joue un role moralisateur 
bien considerable." {La lutte conire le crime, Paris, 1910, p. 97.) 

2 Lombroso suggests the interesting theory that new religions have a 
greater moral influence than old religions, because they have not yet fallen 
into ritualism, symbolism, and other kinds of formalism. (See his Crime, 
Its Causes and Remedies.) "One thing seems clear to me, namely, that the 
younger religions are, the greater is their moral power, because the letter 
has not yet encroached upon the spirit, because the enthusiasm for new 
ideas occupies the mind and draws it away from crime, and, finally, be- 
cause, whatever be its origin, the organism is then more free from symbols 
and formulas that clog its activity." (P. 141.) "On the whole, the contra- 
diction of the influence of religion, now great and now totally lacking, dis- 
appears when one grasps the significance of the facts. Religion is useful 
when it is based absolutely upon morals and abandons all rites and formu- 
laries. This is a condition that can be realized only in the new religions; 
because while all in the beginning are moral, afterwards, little by little, 
they become crystallized, and ritual practices submerge the moral principle, 
which is less easily conceived and retained by the crowd. All members of 
new sects are men of one idea, which protects them, like a vaccine, against 



112 CRIMINOLOGY 

We have not the space to appraize the important religions of 
the world with respect to their moral influence. x But there are a 
number of general considerations which should be noted. There 
is much talk now-a-days of "socializing" religion. By this it is 
meant that a large number of moral teachings which are or are 
supposed to be of social value are to be incorporated in religion. 
Thus will arise, it is alleged, what is called "social" religion. 2 
Some, indeed, insist that religion should become entirely social, 
thus eliminating the supernatural element. 

Now it is evident, on the one hand, that these social teachings 
are not religious in their origin, but arise out of humanitarian- 
ism. 3 It is obvious, on the other hand, that there can be no 
religion in the strict sense of the term without a supernatural 
element. Consequently, there can be no purely "social" reli- 
gion, and the phrase "social religion" is a misnomer for one 

ignoble passions." (P. 142.) His conclusion with regard to the influence of 
religion upon crime is as follows: "The only religions, then, which can pre- 
vent crime are those that are fanatical, passionately moral, or just arising. 
The others are no more effective than atheism, and perhaps less so." (P. 144.) 

There is doubtless a measure of truth in this theory. But Lombroso is, 
I believe, mistaken in assuming that all new religions are necessarily moral 
in their influence. As I have indicated above, it depends upon whether or 
not their teachings are moral from the outset in the sense that they are 
social in their influence. Many religions have been highly immoral from 
their inception, because of the anti-social character of their teachings. 
Furthermore, it is impossible for religion to become solely a system of morals, 
as Lombroso suggests, for then would be eliminated the supernatural ele- 
ment which is essential to every religion. Religion would then become 
charity, philanthropy, altruism, humanitarianism, etc., but would no longer 
be religion. Lombroso himself seems to recognize this when he says with 
regard to charitable activities: "Here, then, it is not religion in general, 
that deserves the credit, but certain religions only, or, better still, the ideal 
tendency of certain progressive races. However, we must say of the opera- 
tion of religion, as we have said of that of charity, that it is always indi- 
vidual, limited, and less effective than the economic influence, which alone 
is universally felt by the masses." (P. 300.) 

1 A survey of this sort has been made by J. L. de Lanessan, La morale dcs 
religions, Paris, 1905. 

2 See, for example, E. A. Ross, Social Control, New York, 1901, Chap. XVI 
entitled " Social Religion." 

3 1 have described the nature of humanitarianism elsewhere. See my 
Poverty and Social Progress, New York, 1916, Chap. XVII entitled "The 
Modern Humanitarian Movement." Also see my article entitled The Rise 
of Modern Humanitarianism, in the Am. Journal of Sociology, November, 
1915. 



THE INFLUENCE OF CIVILIZATION UPON CRIME II3 

phase of humanitarianism. This does not mean that it is not 
possible for a religion to carry along with it at least a modicum 
of social teachings, and the dynamic element in religion which 
arises out of its emotional nature may reenforce those teachings, 
and thus give them greater power. But the question still re- 
mains as to the influence of the supernatural content of religion. 

It will always be impossible for mankind to know everything, 
or, indeed, to know anything absolutely. Beyond the bounds 
of human knowledge will always remain the boundless reach of 
the unknown and the unknowable, furnishing the opportunity 
for speculative metaphysics and religion. So long as the meta- 
physician and the religionist do not invade with their specula- 
tions the field of what has become known through the only 
source of knowledge, namely, science, they are not likely to do 
any harm. The metaphysician is usually well enough ac- 
quainted with science not to commit this mistake. But the 
representatives and exponents of religion are constantly falling 
into this egregious error. By so doing they place grave obstacles 
in the form of superstitious ideas and beliefs in the way of the 
spread and influence of scientific knowledge. The adherents of 
the religious cults are induced to accept the hypothetical re- 
ligious explanations for the proven scientific explanations of 
natural phenomena, and thus they and through them society at 
large are led astray in the conduct of life. Consequently, 
religion and science are irreconcilable not only theoretically, 
because they are diametrically opposed in method (the specula- 
tive theological as opposed to the inductive scientific method), 
and deal with entirely different subject-matter (the known and 
knowable and the unknown and unknowable), but also prac- 
tically, because religion is, or, at any rate, its representatives 
are continually meddling with the results of science by miscon- 
struing and misrepresenting them and by opposing their ac- 
ceptance. 

This is the most important and most far-reaching considera- 
tion with respect to the influence of religion. In the long run it is 
doubtless of much greater importance than the immediate 
effect of religion upon crime, or the moral influence of religion 
upon the population at large. This is true because religion will 
probably always continue to oppose science, and thus to impede 
the progress of civilization, for civilization can be constructed 



114 CRIMINOLOGY 

only upon the basis of knowledge such as can be acquired through 
science alone. It may, indeed, be said that civilization is in a 
large measure correlated with irreligion in the sense that civiliza- 
tion can grow and progress only as religion decreases and loses its 
influence. 1 

Innumerable illustrations can be given of the ways in which 
religion opposes the spread of scientific knowledge, obfuscates the 
truth, and thus impedes the progress of civilization. The pray- 
ers for rain are still read in the Catholic churches and special 
prayer meetings are still held in many Protestant churches in this 
country at times of drought, despite the fact that meteorological 
science has explained for us the forces which control the pre- 
cipitation of rain. The dogma of the forgiveness of sins still 
gives currency to the notion that the effects of an act can be 
wiped out by repentance and remorse alone, or by the absolution 
which follows penitential acts, despite the fact that the biological 
and psychological sciences have taught us that -the effects of any 
act, whether sinful or otherwise, upon the organism and per- 
sonality are indelible. 2 The great war in progress in Europe and 



1 Leuba has made an investigation which is of great significance in this 
connection. By means of a questionnaire he ascertained the beliefs with 
respect to religion of one thousand American scientists. He found that 
only 41.6 per cent of these scientists believed in a personal god. After di- 
viding the thousand into two groups of six hundred less eminent scientists 
and four hundred more eminent scientists, he found that 48.2 per cent of 
the less eminent believed in a personal god, while only 31.7 per cent of the 
more eminent believed in a personal god. 

In similar fashion he ascertained the beliefs of these thousand men of 
science with respect to their belief in personal immortality. He found that 
50.5 per cent of the total number believed in personal immortality. Of the 
six hundred less eminent 59.6 per cent believed in personal immortality, 
while of the four hundred more eminent only 37 per cent held this belief. 

Leuba also made a similar investigation of the religious beliefs of several 
college classes which seemed to indicate that the religious beliefs of these 
students decreased with the degree of advancement of their studies. (J. H. 
Leuba, The Belief in God and Immortality, Boston, 1916.) 

This investigation furnishes evidence that religion declines with increase 
of knowledge and ability, both of which are essential factors for the progress 
of civilization. 

2 The Christian dogma cf the forgiveness of sins is stated at many points 
in the New Testament. For example, in his epistle to the Ephesians, Paul 
states the doctrine of the forgiveness of sins through the vicarious sacrifice 
of Jesus for the persons who accept him as their savior. "In whom we have 



THE INFLUENCE OF CIVILIZATION UPON CRIME 115 

elsewhere at the time of the present writing has furnished 
abundant evidence of the belief which is more or less prevalent 
in each country that the divine sanction somehow or other rests 
upon that country in preference to other countries, thus in- 
tensifying the bitter feeling towards hostile countries, in spite 
of the fact that according to the monotheistic doctrine itself a 
unitary deity could not very well take sides with every bellig- 
erent. 

Science and Crime 

The preceding discussion of religion has incidentally revealed 
the supreme importance of the influence of science. We should, 
in the first place, speak of the immediate effects of science upon 
crime. The development of technical scientific methods en- 
courages crime somewhat by furnishing many professional 
criminals more effective methods of committing certain kinds 
of crimes. But science has also furnished the police and the 
courts more effective methods for the detection and the appre- 
hension of criminals. So that in all probability scientific methods 
have been more effective for the suppression and prevention of 
crime than they have been effective for rendering crime more 
facile. 

But, as is amply demonstrated in the course of this book, 
scientific methods are of the utmost value also for ascertaining 
the causes of crime and the nature of the criminal. With the 
use of these methods much has already been learned, and much 
more will doubtless be learned in the future. Only on the basis 
of this knowledge can an effective program for the treatment of 
the criminal and the prevention of crime be devized. So that 
science is of decisive importance in determining how society 
shall deal with crime in the future. 

It is, however, sometimes alleged that modern science has a 
"materialistic" influence which gives rise to a good deal of 
immorality. This criticism of modern science doubtless orig- 
inates in the main from the religious opposition to science, but 

redemption through his blood, the forgiveness of sins, according to the 
riches of his grace." (Ephcsians, I, 7.) 

While this unscientific and anti-social religious doctrine should be repu- 
diated, offenders who display regret and remorse for the injury they have 
done to others should be treated with magnanimity and mercy in order to 
encourage them to do better in the future. 



116 CRIMINOLOGY 

a little of it may have a sentimental origin apart from religion. 
It is claimed that many of those who become imbued with the 
ideas of modern science discard all of their previous ethical 
ideas, and are no longer governed by a sense of responsibility 
in their relations with their fellows. It is doubtless true that 
this has happened to a few persons, but probably not to many. 
In most of these cases the individual has been a young person 
who has had a conventional religious training. In many of these 
cases the individual has been of an unstable character. It is 
not surprizing that when the clash between the scientific ideas 
and the traditional religious beliefs has come in the minds of 
these persons, it has resulted in a complete overthrowal of the 
old code of conduct without a substitution for it of a new code. 
But it is obvious that this is not a necessary result of scientific 
ideas. On the contrary, a thoroughgoing scientific training 
makes possible an understanding of the physical conditions 
under which mankind lives, of human nature, and of the social 
relations in which men live. This knowledge furnishes the best 
possible basis for a code of conduct which leads to the most 
satisfactory life both for the individual and for his fellows. 
Consequently, it is utterly false to assert that science neces- 
sarily leads to immoral conduct, and that religion is absolutely 
necessary as a basis for a successful code of conduct. 

We now come to the most indirect influence of science upon 
crime, but which is, nevertheless, of the most far-reaching im- 
portance. It is obvious that science is essential to the progress 
of civilization. This progress consists in the main in the ac- 
quiring control as far as possible by man of the conditions of 
his existence, thus enabling him to live the happiest and most 
normal life possible. 1 The highest degree of human control 
which is possible can come only through an understanding of 
the natural forces which determine these conditions of human 
existence, and this knowledge can be obtained only by science. 

Art and Crime 

Criminal persons and actions play a considerable part in 
works of art, and art has a slight influence upon crime. The 

1 For a theory of social progress, see my Poverty and Social Progress, New 
York, 1916, Chap. XXX, entitled " Social Progress and the Coming of the 
Normal Life." 



THE INFLUENCE OF CIVILIZATION UPON CRIME 117 

crimes and criminals usually depicted in art are of the most 
exaggerated types. For example, in literature the criminal by 
passion is frequently represented, notwithstanding the fact 
that this type is comparatively infrequent in real life. 1 Detective 
stories almost invariably describe unusual crimes and criminals 
and unusual police officers and police methods of detection. 
In similar fashion the vices are frequently described in a highly 
colored fashion, the sordid details being carefully omitted. 

It is easy to explain these features of the artistic and especially 
the literary representation of crime and vice. The exaggerated 
types of crime and vice are more dramatic than the common 
types, and crime and vice in general are more dramatic than 
virtue. 2 Consequently, it is not surprizing that the artist so 
frequently takes these exaggerated types as his subjects, and 
that the public finds them of absorbing interest. But this sort 
of an artistic treatment of crime and vice is sure to produce some 
evil results. 

In the first place, by depicting almost exclusively the exag- 
gerated types of crime and vice the public is given a false im- 
pression as to the true nature of the great majority of criminal 
and vicious acts, and as to the traits of most of the criminal and 
vicious persons. From literature, the drama, and other forms 
of art, almost nothing can be learned about the feebleminded 
and psychopathic types of criminals, and comparatively little 
about the occasional and professional criminals. Furthermore, 
what little can be learned is in the main inaccurate and mis- 
leading, since most of the artists have had little opportunity for 
firsthand observation, no scientific training, and have an exu- 
berant and undisciplined imagination which leads them far 
astray in their ignorance. Since it is important that the public 
should have a correct understanding of the problem of crime, 
the influence of art in spreading misinformation is harmful. 

In the second place, the glorification of crime and the criminal 

1 "Dans l'art, au contraire, le crime n'est represente que par ses incarna- 
tions les plus typiques et les moins ordinaires.' II est rare qu'un tempera- 
ment tres original ou que les exigences du public a. un moment donne pous- 
sent l'artiste a eviter les sentiers battus, l'eternelle repetition du crime et 
du criminel par amour — les moins frequemment observables d'ailleurs, 
dans la vie reelle." (E. Ferri, Les criminels dans Fart et la liiieralnre, Paris, 
3897, p. 2.) 
^ 2 Cf. M. Guyau, L'art au point de vue sociologique, Paris, 1897, p. 381. 



Il8 CRIMINOLOGY 

by the artist gratifies the vanity of criminals, and excites a de- 
sire for emulation on the part of would-be criminals. Speaking 
more broadly, such art probably has a certain amount of suggest- 
ive power, by means of which it influences some of the weaker, 
more suggestible individuals to imitate the acts of the criminal 
and vicious characters depicted in these works of art. The 
exact extent of this influence it is impossible to measure. 

On the other hand, strange as it may seem, such art sometimes 
has a cathartic influence which has a slight social value. Ever 
since Aristotle propounded his theory of catharsis (%a^apcrt?) J 
it has been observed that works of art sometimes have a pur- 
gative and purifying effect in cleansing, so to speak, the individ- 
ual of passions which distress him. Aristotle was, I believe, re- 
ferring in particular to the ennobling effect of tragic works of 
art. But we may apply the same theory in a modified form to 
the kind of art described above. While a blood-curdling de- 
tective story may lead one boy into a life of crime, it may satisfy 
vicariously, so to speak, the impulses of another boy in the same 
direction, and thus save him from the same kind of career, or, 
at any rate, relieve him of the distress caused by these impulses. 
While a story of gambling may lead one reader to indulge in this 
vice, it may afford another reader sufficient relief from the same 
impulses to keep him from going any further in the same direc- 
tion. This effect of art may be likened to a process of vaccina- 
tion, inasmuch as the individual is saved from the worst forms 
of crime and vice by experiencing them in a milder form in 
works of art. 

It is, of course, true that a few artists who have been accurate 
observers, and have had opportunities to learn, have given more 
or less truthful pictures of various aspects of crime and vice. 1 
Furthermore, there is a large amount of artistic work whose in- 
fluence is truly moral in the sense that it inspires feelings and 
impulses which are social in their nature. But it is doubtful 
if art has much influence either for or against crime and vice. 
Art is in the main a reflection of conditions which have been 
created by other forces. It furnishes a picture of those conditions 
to a certain extent, but is not in itself a strong dynamic force. 

1 As, for example, Dostoievsky, who had a keen insight into human na- 
ture, and had ample opportunities to observe criminals during several years 
of imprisonment. 



THE INFLUENCE OF CIVILIZATION UPON CRIME II9 

The influence of art upon crime and vice raises the question 
of the regulation of art. Such regulation exists to a considerable 
extent in many parts of the civilized world, as, for example, in 
this country. Legal regulation of art almost always does more 
harm than good. Much preferable to legal regulation is the 
regulative influence of public opinion. And the character of 
this opinion is determined mainly by the conditions under 
which the public lives. Anti-social art and the demand for it 
are created mainly by evil living conditions. When human 
beings are able to lead a normal life in which they can express 
their natures spontaneously with a minimum degree of restric- 
tion, anti-social art and the demand for it will disappear almost 
entirely. 

This fact is illustrated in many ways. Much of the anti- 
social art is due to the romantic impulse for adventure which 
seems to be deeply rooted in human nature, and which does not 
usually have an opportunity for expression in the prosaic life of 
the great majority of persons. If human life could be so ordered 
as to furnish ample scope for the satisfaction of this impulse 
in one way or another, this kind of art would at once disappear. 
Most of the exploitation of sex on the stage, in literature, and 
in other forms of art, is due to the fact that under present con- 
ditions many individuals are unable to express their sexual 
natures satisfactorily. If society could be so organized that 
practically every individual could live a normal sexual life, most 
of this artistic exploitation of sex would at once disappear. 

So that art may be regarded as a sort of running commentary 
upon existing conditions. And to expend much time and effort 
in endeavoring to influence art is wasteful and foolish, because 
much more can be accomplished by attacking the underlying 
causes of these conditions. 

The Press and Crime 

Education is a powerful force in civilization which I shall 
discuss in a later chapter on juvenile criminality. In passing, 
it may be well to touch briefly upon the influence of the press. 
In our modern civilization a vast number of individuals, perhaps 
the majority of the population, read the daily newspapers and 
other periodicals appearing at longer intervals. These journals 
transmit to their readers a large amount of information (and 



120 CRIMINOLOGY 

sometimes of misinformation), and thus constitute an important 
educational agency. But they may at the same time stimulate 
a certain amount of crime by the descriptions which they furnish 
of criminal acts. This is especially true of the sensational press, 
or so-called yellow journals, which give lurid accounts of crimes, 
suicides, etc. These .accounts doubtless have a suggestive influ- 
ence, and have led at least a few suggestible individuals to 
imitate these acts. 

Some writers believe that the suggestive influence of the sen- 
sational press is very great and has caused many crimes. 1 It 
is obviously impossible to measure this influence. Occasionally 
a criminal act is committed in which this influence comes to 
light, either through the testimony of the perpetrator of the 
act or in some other way. Furthermore, the science of psy- 
chology has furnished ample evidence that human beings are 
more or less suggestible, which justifies us in assuming that 
sensational accounts of criminal acts will lead to a small amount 
of crime. But there are two reasons for believing that the 
above-mentioned writers have exaggerated this influence. In 
the first place, this influence is likely to be sufficiently strong 
only over very weak, suggestible individuals to lead to criminal 
acts. In the second place, these weak individuals are very likely 
to commit these acts anyway, even if they do not fall under the 
suggestive influence of the sensational press, for there are other 
suggestive influences at work which are almost certain to affect 
them. 

As in the case of art, legal regulation of the press is almost 
certain in most cases to do more harm than good. The free- 
dom of the press is one of the essential features of civilization. 
It goes without saying that the press, like individuals, should be 
subject to the laws against libel, fraudulent statements, and 
the incitement to crime, the justification for which will be dis- 
cussed in Chapter XXVIII. Furthermore, it is permissible to 
restrain the press from publishing information of military value 
in time of war. But with these few exceptions, the only sort of 

1 As, for example, Frances Fenton, The Influence of Newspaper Presenta- 
tions upon the Growth of Crime and other Anti-Social Activity, Chicago, 191 1; 
E. B. Phelps, Neurotic Books and Newspapers as Factors in the Mortality of 
Suicide and Crime, in the Bui. of the Am. Acad, of Medicine, Vol. XII, No. 5, 
October, 191 1. 



THE INFLUENCE OF CIVILIZATION UPON CRIME 121 

regulation of the press as of art which can be tolerated is regu- 
lation by public opinion. 1 

The Advance of Civilization and the Increase 
of Crime 

In the two preceding chapters and the present one I have 
discussed the influence upon crime of several of the most im- 
portant factors in civilization, namely, the economic factors, 
the political factors, religion, science, art, and the press. Other 
aspects of civilization are dealt with elsewhere in this book. 
I shall now discuss briefly the influence of civilization in general 
upon the extent and character of crime. 

It is frequently asserted that crime has increased greatly in 
modern times, and it is therefore concluded by some persons 
that modern civilization has had a harmful effect. There are 
many difficulties in the way of measuring the extent of crime. 
But so far as criminal statistics are available, they seem to 
indicate an increase in the extent of crime. However, this does 
not necessarily mean that the acts formerly stigmatized by 

lu Le remede ne consiste pas dans un baillon a la presse — qui reflete 
et ne cree pas les gouts du public et qui du reste compense largement les 
inconscients dommages qu'elle peut causer par les immenses avantages de 
la libre discussion; le remede est en nous; il est dans la reaction de toute 
notre energie contre cette apotheose du mal qui va se repandant partout; 
il est dans une ceuvre d'education ayant pour but de former des consciences 
plus equilibrees et plus saines, capables de trouver leur satisfaction dans 
le recit des bonnes oeuvres, plulot que dans la description d'actes atroces et 
laches; il est dans notre effort pour nous elever a la hauteur de ce que notre 
cerveau trouve digne d'interet et d'etude: le travail obscur, les souffrances 
muettes de cette myriade de gens ignores qui forment la multitude, et non 
les actions violentes ou perverses de cette aristocratie du crime qui repre- 
sente heureusement une monstrueuse exception." (S. Sighele, Litterature 
et criminalile, Paris, 1908, pp. 218-219.) 

" By whom art shall be supervised is quite another question. AH attempts 
to lodge the supervision of it in any man or board have done more harm 
than good. By brutal suppression they consecrate the established order 
and turn artists into sycophants or revolutionists. Art should be the hand- 
maiden, but it should never be made the mere bond-slave and scullion of 
current morality. 

"It may be that the fate of the artist's work should be decided by the 
ten thousand influential, subject to an appeal to the million uninfluential; 
the latter to ban without ruth or scruple whatever gives moral offence. In 
this way it may be possible to make art amenable to society without making 
it amenable to law." (E. A. Ross, Social Control, p. 274.) 



122 CRIMINOLOGY 

the law as criminal are being committed more frequently now 
than in the past. Owing to the great increase in the com- 
plexity of human life caused by the progress of civilization, the 
category of criminal acts has been greatly extended, so that it is 
possible to commit a much greater variety of crimes now than 
has been possible in the past. Furthermore, owing to the in- 
crease in the efficiency of government, many of the old criminal 
laws are enforced now much more rigidly than in the past. 
The apparent increase of crime in modern times in civilized 
countries is doubtless due in large part to these two factors, 
and may be entirely due to them. 1 

There are, however, a few ways in which the progress of civili- 

1 Hall has assembled a large number of statistics which, he believes, 
show that crime has increased in modern times in civilized countries. (A. C. 
Hall, Crime in Its Relations to Social Progress, -New York, 1902, especially 
Chapters 12 to 14, inclusive.) 
His conclusion with respect to the extent of crime in the'future is as follows: 
"The typical crimes of the most highly developed and successful nations 
of today are largely misdemeanors, caused by the fine legal adjustments 
made necessary by our ever more and more complex social life. Will this 
process continue forever? Will more delicate adjustments always be nec- 
essary and result in an ever-enlarging list of social prohibitions? Probably. 
But the rate of increase may not be as rapid in the twentieth century as it 
has been in the eighteenth and nineteenth. There was so much to be ac- 
complished, and so much has now been done, to guard the rights and foster 
the upward growth of each and all under the laws, that we may well hope 
our suffering and arduous labors will make the creation of new forms of 
crime less necessary for our great-grandchildren; that this education through 
social discipline may gradually become less difficult, its lessons more easily 
and quickly learned. If this prove true, and if society continues to be suc- 
cessful in diminishing the amount of criminality under eld laws, then the 
age of maximum crime will have been passed, and from thenceforth society 
will have a decreasing, rather than an increasing total of delinquency." 

(Pp. 374-375-) _ 

Criminal statistics have frequently been used with more or less reckless- 
ness to show that crime is increasing or decreasing. As an example of such 
recklessness, see the following article: C. A. Ellwood, Has Crime Increased 
in the United States Since 18S0? in the Jour. Crim. Law, Vol. I, No. 3, Sep- 
tember, 1910, pp. 378-385. In this article it is concluded that serious crime 
has been increasing in this country. A less aggravated example is to be 
foimd in the following article: J. Goebel, Jr., The Prevalence of Crime in the 
United States and Its Extent Compared with That in the Leading European 
States, in the Jour. Crim. Law, Vol. Ill, No. 5, January, 1913, pp. 754-769. 

It is well to beware of misleading attempts to measure precisely the ex- 
tent of crime. 



THE INFLUENCE OF CIVILIZATION UPON CRIME 1 23 

zation may have increased the amount of crime. Civilization 
has doubtless increased the complexity of human life, and may 
thereby have increased the nervous strain upon human beings. 
The available statistics seem to indicate an increase of insanity 
and suicide in modern times, 1 and this has probably resulted 
from the increase in nervous strain. In similar fashion, the 
added strain upon the nervous system may have led to a larger 
amount of crime. 

A theory which has been supported by several writers is that 
there is a direct correlation between economic activities and 
criminal activities, or, as it is sometimes stated, between ma- 
terial prosperity and criminality. The principal exponent of 
this theory has been Poletti, 2 who used French statistics of 
imports and exports and other statistics indicating the extent 
of economic activities. But his own calculations seemed to 
indicate that the economic activities had increased far more 
than the criminal activities. And in any case, it is evident, as 
has been pointed out by Ferri, 3 that it is impossible to measure 
accurately the extent of economic activity, just as it is impos- 
sible to measure accurately the extent of criminal activity. 
For this and for other reasons Poletti's theory has been severely 
criticized by Ferri, Garofalo, 4 Tarde, 5 van Kan, 6 and many 
other criminologists. 

At the same time there is a measure of truth in Poletti's theory 
which should be recognized. It emphasizes the fact that the 
increase of crime should be compared not only with the increase 
of population, but also with the increase of the activities of 
society caused by the progress of civilization. It is not sur- 
prizing that an increase in these activities, quite apart from the 

1 Cf. A. Corre, Crime el suicide, Paris, 1891. 

2 Poletti, II sentimento netta scienza del diritto penale, Udine, 1882. 

3 "The mathematical or even the merely precise expression of a compari- 
son between criminal and economic activities is impossible for the simple 
reason that if we could approximately fix the first term of the equation by 
the number of offenses prosecuted and tried, we could not, as to the second, 
in view of the infinite variety of elements which compose it, give even an 
approximate total value." (E. Ferri, Criminal Sociology, Boston, 191 7, 
p. 184.) 

4 R. Garofalo, Criminology, Boston, 1914, pp. 166-176. 

5 G. Tarde, La criminalile comparee, Paris, 1886, pp. y$ff. 

6 J. van Kan, Les causes economiques de la criminalile, Paris, 1903, pp. 199- 



124 : CRIMINOLOGY 

increase in population, should stimulate a certain amount of 
crime, as, for example, the increase in commercial activities 
has increased the opportunities for fraud. But Poletti was not 
justified in assuming that such an increase in crime is necessarily 
permanent, for if civilization succeeds in evolving a more effi- 
cient social organization, the extent of crime may eventually 
be decreased relatively if not absolutely. 

A similar theory, which has been suggested by certain writers, 
has been that the extension of personal liberty by modern civili- 
zation has afforded greater opportunity for the abuse of liberty, 
and has thus led to an increase in the amount of crime. This 
theory is sometimes used as a basis for criticisms of the modern 
democratic and humanitarian movement, on the ground that 
this movement has increased crime by weakening social control 
to an excessive degree. It is true that personal liberty has been 
greatly increased in some respects by the progress of civiliza- 
tion, as, for example, by the lessening of the -power of kings 
and other autocratic rulers, by the increase of the guarantees 
of personal liberty by democratic and constitutional govern- 
ment, etc. But, on the other hand, many new restrictions have 
arisen, in the form of ordinances in cities and similar legislation. 
So that it is hard to ascertain whether modern civilization has 
on the whole increased or has diminished the extent of personal 
liberty. To say the least, it is doubtful if social control has been 
seriously weakened, and it is probable that its character has 
been changed so as to make it more effective and more beneficial 
to the great majority of society. 

The progress of civilization has probably changed somewhat 
the character of crime from the violent to the cunning type. 
At any rate, whether or not crimes of violence have decreased, 
crimes of cunning are doubtless much more numerous now than 
crimes of violence. 

The relation of crime to civilization in the future will be 
discussed in the final chapter of this book. It is well, however, 
at this point to call attention to the fact that the recent past 
has been a period of rapid change and progress. It may indeed 
be regarded as a sort of transitional period between an old and 
a comparatively new social system. It is, therefore, very diffi- 
cult to predict from recent events as to whether crime is going 
to increase or decrease. 



PART III 
CRIMINAL TRAITS AND TYPES 



CHAPTER IX 
THE ORGANIC BASIS OF CRIMINALITY 

Anatomical and physiological basis of criminality — The theory of the 
born criminal: Lombroso — The organic basis of the mental factors in 
criminality: instinct; feeling; intelligence — Abnormalities in the neu- 
ral basis of mind — The organic causes of amentia — The organic 
causes of dementia, the neuroses, and abnormal appetites — Race and 
criminality. 

Human nature reveals itself in the first instance through the 
forms of behavior. But behavior is determined by the organic 
traits of the individual, and the mental states which precede 
every act. So that in order to understand the nature of any 
group of human beings it is necessary to study these organic 
traits and mental states. 

Anatomical and Physiological Basis of Criminality 

The primary factor in the determination of behavior is the 
anatomical structure. It is obvious that an animal can do only 
what its action system enables it to do. A bird without wings 
cannot fly, an animal without legs or similar locomotor organs 
cannot walk. And not only are the anatomical structure in 
general and the gross anatomical features of importance, but 
also the minute anatomical features, most of which are internal, 
such as the texture and microscopic makeup of the different 
parts of the organism. For example, the texture of the nervous 
system is one of the principal factors in the determination of 
the mental states. 1 Peculiarities of the texture of the nervous 
system doubtless explain criminal conduct in many cases. 

1 "In the cerebral cortex lies memory with its wealth of stored experiences, 
in this organ love, hate and fear come into being; here arise the cool delibera- 
tions of the man of science, the dreams and aspirations of the poet, the 
passion of the religious enthusiast, and, when abnormalities intervene, the 
ravings of the madman. Contrary to ancient belief, the spleen does not 
engender temper, nor do the affections flow from the heart. These and all 
other like attributes proceed from the brain." (G. H. Parker, The Sources 



128 CRIMINOLOGY 

In similar fashion the physiological processes have a powerful 
influence upon behavior. The processes characteristic of the 
vascular, the respiratory, the digestive, the excretory, and the 
nervous systems condition and determine in the last analysis 
the mental states and processes. Derangements of these physio- 
logical processes are very likely to cause corresponding dis- 
turbances in the mental processes which in some cases give rise 
to criminal conduct. 

These organic traits and processes are, therefore, of funda- 
mental importance in the causation of criminality. There is not 
the space here to review in detail the extensive studies which 
have been made, especially by the Italian criminologists, of the 
anatomical and physiological traits of the criminal. 1 In the 
main these have been studies of external traits which are not 
the direct causes of conduct, while the mental traits are direct 
causes. However, the study of these external traits is important, 
and should be correlated with the study of the. internal traits. 
This work has been misunderstood by many persons who have 
imagined that the criminal conduct was caused directly by these 
external traits, and did not realize that these traits are merely 
the physical stigmata of certain types of criminals. 

The organic factors for criminality have been given the most 
weight by the criminologists who have believed that they have 
been able to distinguish a congenital type of criminal predestined 
from birth by his anatomical and physiological traits to become 
a criminal. This theory has received the most complete exposi- 
tion in Lombroso's famous theory of the "born criminal." I 
shall, therefore, summarize and criticize briefly Lombroso's 
theory. 

The Theory of the Born Criminal 

Lombroso's conception of the born criminal grew out of his 
anatomical and physiological researches. He found certain 
malformations of the skeleton and of the viscera and several 
abnormalities in the physiological processes unusually prevalent 

of Nervous Activity, in Science, N. S., Vol. XLV, No. n 73, June 22, 191 7, 
pp. 620-621.) 

1 1 have reviewed these studies at some length in my book entitled The 
Principles of Anthropology and Sociology in Their Relations to Criminal 
Procedure, New York, 1908. See especially Chap. II. 



THE ORGANIC BASIS OF CRIMINALITY 1 29 

among the criminals he examined, and he arrived at the conclu- 
sion that they constituted the traits of a distinct biological and 
anthropological type which is prone to become criminal. He also 
concluded, as a result of a study of the equivalents of crime 
among animals and among primitive men and of the traits and 
conduct of children, that this congenital criminal type is to a 
large extent an atavistic type. That is to say, he thought that 
many of the distinctive traits of this type are atavistic in the 
sense that they revert to earlier human types and to pre-human 
ancestors of man. 

Furthermore, Lombroso studied the mental traits of this type, 
and arrived at the conclusion that the born criminal is morally 
insane or a moral imbecile (fou moral). It is difficult to ascer- 
tain from the terminology used by him whether he had in mind 
insanity or imbecility. But inasmuch as he recognized a dis- 
tinct type of insane criminal, it is probable that he considered 
the born criminal a moral imbecile. According to his theory, 
this moral defectiveness arises principally out of the weak 
sensibility of the born criminal, which makes it difficult for this 
type of criminal to feel sympathetically. He also concluded 
that many born criminals are epileptic, and that probably all 
of them are at least epileptoid in the sense that the disease is 
latent in them and may become active under favorable condi- 
tions. He then attempted to connect the moral imbecility and 
the epileptic tendency with the atavistic anatomical and phys- 
iological traits. 

Lombroso's theory of the born criminal has created an enor- 
mous amount of discussion, criticism, and difference of opinion, 
which there is not the space to review here. 1 I shall be able 
merely to point out some of the main defects in the theory. 

To begin with, it is obvious that there can be no "born" 
criminal in the literal sense of that term. No person is a criminal 
in the strict legal sense of the term until he has committed a 
criminal act, and no one could commit such an act until several 
years after birth. Furthermore, no person is predestined from 

1 1 have gone over this ground at some length in my book entitled The 
Principles of Anthropology and Sociology in Their Relations to Criminal 
Procedure, New York, 1908, especially Chaps. I and II; also in my Intro- 
duction to the English translation of Lombroso's Crime, Its Causes and 
Remedies, Boston, 191 1. 



I30 CRIMINOLOGY 

birth to become a criminal on account of h^ congenital traits, 
because criminality depends in part upon environment and social 
status. So that an individual with all' of the distinctive traits 
of the "born" criminal may be born a king who is legally 
incapable of committing any crime, or even of doing any 
wrong ! 

On the other hand, it is doubtless true that some persons are 
born with traits which make them peculiarly prone to commit 
crimes if their environment is conducive to criminal conduct, and 
part of the criminal class is recruited from this group. In recog- 
nition, therefore, of these powerful congenital forces for crime, 
there is a measure of truth in calling them born criminals. There 
are, however, several egregious errors in Lombroso's theory. 

Lombroso seems to have been rather ignorant of the modern 
science of biology, and especially of the theory of heredity. This 
is indicated by the loose way in which he used the term " at- 
avism." Biologists recognize that atavism, or reversion, as 
they usually call it, takes place when there reappears in an 
individual of the present day a trait of an earlier type, provided 
that this reappearance is due to hereditary forces. That is to 
say, if primitive traits which have long remained dormant re- 
assert themselves in the germ plasm at the time of conception, 
there is a true case of reversion. But a perusal of Lombroso's 
writings shows that many of the criminal traits which he calls 
atavistic are not hereditary in their origin, but are cases of 
arrested development either before or after birth. For example, 
this is the case when he speaks of degeneracy as a form of at- 
avism, for most if not all of the traits he includes under this term 
are not congenital. The fact that the individual has them at 
birth does not indicate necessarily that they are congenital, for 
they may be the result of arrested development during the pre- 
natal period of the life of the individual. In other cases he 
characterizes as atavistic certain habits which have been trans- 
mitted by social agencies. For example, he seems to regard the 
habit of tattooing as an atavistic trait, though tattooing is 
obviously a habit which could not possibly be transmitted by 
hereditary means. 1 

1 For a detailed criticism of Lombroso's atavistic theory of crime, see 
L. Manouvrier, La genese normale du crime, in the Bulletins de la Sociele 
& Anthropologic de Paris, Vol. IV, 1893, pp. 405-458. 



THE ORGANIC BASIS OF CRIMINALITY 131 

In fact, Lombroso's exposition of his theory of the born crim- 
inal indicates that he probably believed in the hereditary trans- 
mission of acquired traits, though he nowhere explicitly states 
his opinion on this point. But he again and again speaks as if 
habits or the effects of habits are transmitted by hereditary 
means. The consensus of opinion among biologists today is 
that no acquired traits can be transmitted by hereditary means. 1 
Consequently, Lombroso was seriously in error in this respect, 
and this grave scientific mistake greatly vitiated the value of 
his theory. s~ 

Lombroso apparently believed that moral imbecility is a dis- 
tinct morbid entity. This could not be so since morality is in 
part a social trait, but certain kinds of feeblemindedness are 
prone to give rise to immoral conduct. So that there is no 
distinct congenital immoral type, the existence of which he im- 
plied: Furthermore, he exaggerated the closeness of the rela- 
tionship between epilepsy and moral imbecility, and over- 
estimated the amount of epilepsy among criminals. 

The theory of the born criminal as a biological, anthropological 
type is the most characteristic feature of Lombroso's classifica- 
tion of criminals. It is evident that there is not and could not 
be any such type in the strict sense of the term, and Lombroso 
committed some grave scientific errors in expounding his theory. 
However, his theory has performed a useful service in emphasiz- 
ing some of the powerful hereditary factors for criminal conduct 
which have been overlooked by many of the writers on this 
subject. 2 

The Organic Basis of the Mental Factors in Criminality 

The lowest animals and especially the protozoa give direct 
reactions to external stimuli which are called tropisms. As we 
go up in the animal scale, and especially as the nervous system 
evolves, many reflex- actions appear, and then combinations of 
these reflexes in complex forms which are called instincts. Man, 
like all of the higher animals, has inherited many of these in- 

1 1 have summarized the modern theory of heredity in my books entitled 
The Science of Human Behavior, New York, 1913, Chaps. Ill and IV; and 
Poverty and Social Progress, New York, 1916, Chap. III. 
. 2 See Appendix B. 



I32 CRIMINOLOGY 

stincts which furnish most if not all of the dynamic impulse to 
action, and form the groundwork of his behavior. According to 
the conditions and circumstances of the life of the individual, 
variations in these inherited modes of behavior are acquired 
which, if they become more or less fixed, are called habits. 

Feeling and intelligence are two other inherited aspects of 
man's mental makeup which play an important part in the 
determination of human behavior, if not by furnishing a direct 
impulse to action, at any rate by influencing the direction which 
the instinctive impulse takes. Like all other mental phenomena, 
feeling is based upon the nervous system, for no manifestations, 
direct or indirect, of feelings have ever been observed apart from 
the nervous system. In all probability feelings are primarily 
sensations, like all impressions received through the senses. 
Many of the feelings, indeed perhaps all of them, are pleasurable 
or painful. If this is true of all of them, pleasure and pain may 
be the distinctive traits of feeling. 

The pleasurable and painful elements in feeling are of chief 
importance for the determination of behavior. They are im- 
portant because pain and pleasure furnish guidance for the con- 
scious and unconscious selection of different modes of behavior. 
An infant who has experienced painful feelings from fire will 
thereafter avoid it, while the pleasures of the milk bottle wiU 
attract him. So that while the feelings do not in themselves 
furnish a dynamic impulse, they influence behavior greatly by 
encouraging or inhibiting the instinctive and reflex impulses of 
the organism. It may also be true that an emotion, which is a 
complex and highly organized state of feeling, will sometimes 
reenforce and strengthen a tendency to an action in order to 
secure the relief which comes through action. This probably 
happens when the emotional state involves tense or congested 
organic conditions which can be removed only by means of 
action. 

The third fundamental aspect of mind is the intelligence or 
intellect. This aspect, like the two preceding aspects, is based 
upon the nervous system. It arises primarily out of the ability 
of the nervous system to make a record of, or to register, so to 
speak, the stimulations which it receives and the motor impulses 
which pass out along its neural paths. This record constitutes 
the memory, and as it grows in extent it influences behavior 



THE ORGANIC BASIS OF CRIMINALITY 133 

more and more. When the records of these experiences are 
stimulated in the nervous system, they form images and ideas 
which inhibit or reenforce impulses to action, and furnish ends 
for such action. In this fashion the intelligence increases greatly 
the variability of behavior. Furthermore, it makes possible 
conscious behavior. 

The physical basis of mind is neural. All of the mental 
phenomena which I have described, namely, the instinctive, 
the affective, and the intellectual phenomena, take place through 
the agency of the nervous system. The instincts function, in the 
first place, because stimuli from sense organs pass over nerve 
fibers to the central nerve cells which constitute the centers for 
the instincts in the central nervous system. These centers are 
probably localized mainly in the spinal cord, the medulla, and 
the cerebellum. The instincts function, in the second place, 
because impulses are sent out from these centers and travel over 
nerve fibers to the muscles which perform the instinctive acts. 
Feelings are possible only where nerve fibers are present, and 
probably arise mainly as a result of stimulation of the sym- 
pathetic nervous system. The intelligence is localized in the 
association areas of the cortex of the brain. 

Consequently, inherited variations in the nervous system may 
give rise to exceptional strength or exceptional weakness of some 
of the instincts and feelings. In similar fashion, use or disuse 
may lead to acquired variations, which may in turn result in the 
accentuation or inhibition of instincts and feelings. The strength 
of the intellect depends largely upon the acuteness of the sense 
organs, the efficiency of the sensory nerve fibers, and the num- 
ber and quality of the association centers in the cerebrum which 
are inherited. But it depends also upon the training it receives, 
and the ideas it acquires from its social environment. Modern 
neurological research has thrown much light upon the basis and 
mechanism of inheritance. 

Numerous abnormalities manifest themselves in all of these 
aspects of mind. If these abnormalities exist from birth, they 
may be due to congenital variations. Hereditary variations 
may have taken place in sensory, motor, or central nerve centers 
which make certain instincts stronger or weaker. Or variations 
may have taken place in sensory or central nerve centers, or in 
some of the viscera, which change the nature of the feelings in 



134 CRIMINOLOGY 

such a manner as to lead to criminal conduct. Or variations 
may have taken place in the cortex of the brain which weaken 
the intelligence. 

But anatomical and physiological traits which are abnormal 
from the time of birth are perhaps more likely to be due to irreg- 
ularities in the development previous to birth, such as are due 
to pressure on the brain, ill-nutrition, etc. These conditions 
may prevent the cerebral cortex or outer covering of the brain 
from developing fully. Most of the important nerve centers 
are to be found in the gray matter of this outer covering. Con- 
sequently, the mental makeup, and therefore the conduct of 
the individual, depends in large part upon the texture of this 
cortex. When the mind never attains its full development, a 
state of feeblemindedness or amentia is said to exist. 

If the pathological mental condition appears after birth, it 
may be the result of the degeneration of a cortical substance 
which is caused by a cerebral disease, and which may give rise 
to a state of dementia. Or it may be caused by a brain tumor, 
or it may be the result of lesions caused by accident. Some- 
times ill-nutrition or malnutrition, especially if it is experienced 
early in life, causes a general defective condition of the brain 
which manifests itself in mental abilities of a low order, and in 
some cases results in a positive derangement of the mental 
faculties which is ordinarily called insanity. 

These abnormal or pathological neural conditions result in 
abnormal conduct of all kinds, some forms of this conduct being 
criminal. The excessive strength or weakness of some of the 
instincts may furnish a powerful impulse towards crime, or 
may remove a powerful restraint which acts upon most persons. 
In similar fashion, the excessive strength or weakness of some 
of the feelings may furnish a powerful impulse towards some 
kinds of criminal conduct, such as crimes of passion, or may 
remove the restraint from certain other kinds of criminal con- 
duct. 

I shall now describe briefly the organic causes of these ab- 
normal and pathological mental states. It is a common belief 
that nervous diseases are inherited. This belief is probably 
due mainly to the fact that nervous infirmity reappears fre- 
quently in the generations of certain lines of descent. But it 
may have arisen in part out of the idea that, because of the 



THE ORGANIC BASIS OF CRIMINALITY 135 

delicate and refined structure of the nervous system, and be- 
cause of the great extent to which it influences conduct, very 
slight changes in the germ plasm may lead to rather extensive 
abnormalities in the nervous system and to serious functional 
derangements of conduct. There is doubtless a good deal of 
truth in both of these ideas. But it is not necessarily true that 
nervous infirmities as such are transmitted by heredity, or, 
at any rate, this may be true only of some of them. In the case 
of other nervous infirmities the hereditary forces may work 
somewhat more indirectly in causing these infirmities. 

The Organic Causes of Amentia 

The belief that nervous and mental infirmities are hereditary 
has been most prevalent with respect to congenital feeble- 
mindedness or amentia, so that many persons believe that 
amentia is always inherited. This, however, is not the case. 
The neural basis of amentia is subnormal cerebral development. 
This is due in many cases to hereditary forces, but is sometimes 
due to environmental forces which retard the development of 
the brain. 

Several theories as to the hereditary causes of amentia have 
been offered which, however, are not mutually exclusive of 
each other. It has been suggested that amentia may be due to 
diminished germinal vitality. This diminution does not neces- 
sarily cause amentia in the first generation. The neuropathic 
diathesis to which it gives rise may manifest itself in a polymor- 
phic fashion in the forms of neuroses, abnormal appetites, etc. 
But if germinal recuperation does not take place and the vital- 
ity continues to diminish from generation to generation the 
result may be amentia, because, owing to the weakened germ, 
the cerebrum fails to develop fully. It goes without saying 
that this weakness of the germ need be only with respect to the 
parts of the germ which determine the development of the cere- 
brum or of the nervous system, and does not necessarily affect 
other parts of the germ cell. 

Another theory is that amentia is due to atavism or reversion. 
Presumably this is due to the fact that certain parts of the germ 
cell which have evolved in the later stages of phylogenetic 
evolution and which play a part in cerebral development fail 



I36 CRIMINOLOGY 

to develop at all, or develop only partially, thus giving rise to 
subnormal cerebral development. 

Still another theory has been to the effect that amentia is due 
to variations in the germ cell. Presumably these would be 
variations of such a nature as to omit certain parts of the germ 
cell essential for complete cerebral development, though it is 
conceivable that variations of other kinds might also give rise 
to amentia. Some biologists have thought that these variations 
are small in size but cumulative in their effect. Other biologists 
have thought that they are large in size and are of the nature of 
mutations governed by the Mendelian laws of inheritance. 

These theories are not necessarily mutually exclusive of each 
other. This is obvious when we consider the causes of these 
changes in the germ cell. For example, among the causes of 
germinal variation which have been suggested are neuropathic 
inheritance, alcoholism, tuberculosis, syphilis, morbid con- 
sanguinity, etc. Diminution of germinal vitality may be the 
cause of a neuropathic inheritance or of alcoholism, or of any 
other pathological condition. Or alcoholism, tuberculosis, or 
syphilis may be the cause of the diminution of germinal vitality 
which may in turn cause the variation. So that these factors 
may cooperate more or less in giving rise to hereditary amentia. 
In view of our limited knowledge of heredity it is hardly possible 
to be more explicit in this analysis of the hereditary causes of 
amentia. But however the changes may come about, it is 
evident that for the amentia to be hereditary there must be 
changes in the germ cell which give rise to subnormal cerebral 
development, thus preventing mental development beyond a 
certain point. 

But amentia may be due to changes which take place after 
the development of the individual has begun. Among the 
causes of acquired amentia are an abnormal physical condition 
of the pregnant mother, injuries to the fetus, abnormal child 
labor, traumatic injuries to the young child, toxic influences 
upon the young child due to toxic fluids introduced into the 
body or generated within the body by certain diseases, various 
nutritional conditions, etc. In each of these cases the develop- 
ment of the cerebrum is arrested to such a degree and so per- 
manently that full mental development becomes forever impos- 
sible for that individual. It is probable that in many, perhaps 



THE ORGANIC BASIS OF CRIMINALITY 137 

in the great majority of cases, hereditary and environmental 
factors combine to cause the amentia. x 

The Organic Causes of Dementia, the Neuroses, and 
Abnormal Appetites 

Probably most if not all of the causes of amentia which have 
been mentioned also act as causes of dementia. In the case of 
dementia, however, they act in such a fashion that they do not 
prevent the full development of the cerebrum, but give rise to a 
degenerative process after it has developed. With respect to 
the hereditary causes a difference in the strength of the cause 
may determine in some cases whether it will give rise to amentia 
or to dementia. In other cases differences in the quality of the 
hereditary factors may determine whether they will cause amen- 
tia or dementia. If the environmental factors affect the subject 
after full cerebral development has taken place, they cannot 
cause amentia, but may cause dementia. 

These factors also play an important part in causing the 
neuroses, and in creating abnormal appetites, which lead to 
alcoholism, drug habits, etc. These are milder polymorphic 
manifestations of a process which may lead to dementia. In- 
sanity is almost always if not inevitably a result of dementia, 
but may sometimes be the result of neuronic derangement 
which does not necessarily result in dementia. Insanity, like 
these other forms of mental infirmity, may be due to hereditary 
factors or to environmental factors, probably usually to a com- 
bination of both kinds of factors. And it is well to remember 
that, whether the causes are hereditary or environmental, mental 
infirmity always arises directly out of an abnormal and patho- 
logical condition of the neurones in the nervous system, and 
more particularly in the cerebrum. Clinical microscopic study 
has furnished many facts concerning these pathological neuronic 
conditions. 

In fact, it is inconceivable that there are any so-called "func- 
tional" diseases which give rise to mental infirmity. By "func- 
tional" diseases are usually meant the diseases which are sup- 
posed to have no abnormal or pathological anatomical basis 

1 Tredgold is of the opinion that not more than 10 or 15 per cent of the 
cases of amentia are caused solely by environment. [A. F. Tredgold, Mental 
Deficiency (Amentia), New York, 1914, p. 37.] 



138 CRIMINOLOGY 

in the nervous system, as distinguished from the so-called 
"organic" diseases which are due to lesions or other derange- 
ments of the nervous system which are definitely localized. It 
cannot be emphasized too strongly that the so-called functional 
as well as the so-called organic diseases have an anatomical 
basis, and that they differ from each other only in that the 
anatomical variations from the normal are not so extensive, 
or that they are much more numerous and more widely dis- 
tributed, though less extensive, in functional diseases than they 
are in organic diseases. Furthermore, it is true that the organic 
disease is also a functional one in the sense that one or more 
organic functions must have been disturbed where the organic 
disease exists. So that in the last analysis there is a funda- 
mental likeness between the organic and the functional disease, 
and the study of each of them involves the study of an anatomi- 
cal basis and of physiological activities. 

Race and Criminality 

Before closing this chapter I wish to discuss briefly the rela- 
tion between race and criminality. Racial variations within 
the human species are revealed to the eye by such external 
traits as skin color, form and color of the hair, shape of the 
features of the face, stature, etc. The existence of these external 
differences makes plausible a belief in internal racial differences 
as well. Furthermore, the obvious effects of climate and the geo- 
graphical distribution of the human races, which follows in part 
the climatic lines, have suggested that the racial variations were 
due originally in large part if not entirely to climatic differences. 

Some writers have accentuated the variation between the 
races. They have contended that not only great physical but 
also great mental differences exist between the races, and that 
these differences explain in large part the cultural differences 
between the peoples of the world. Some of these writers have 
instituted invidious comparisons between these races by rating 
certain of them as superior races and others of them as inferior 
races. : 

It was to be expected, therefore, that the attempt would be 

1 See, for example, the writings of de Gobineau, H. S. Chamberlain, and 
of the so-called anthropo-sociological school such as Vacher de Lapouge 
and O. Ammon. 



THE ORGANIC BASIS OF CRIMINALITY 139 

made to account for the differences in the criminality of the 
peoples and inhabitants of the different parts of the world by 
racial variation. For example, Lombroso * has given much 
weight to racial factors in the causation of criminality. He 
characterizes peoples as being racially inferior or racially su- 
perior. Furthermore, his theory of atavistic reversion as a 
cause of criminality, which I have criticized in this chapter, is 
closely connected with his theory of the influence of race, for 
he frequently implies in his writings that the atavistic traits 
of the criminal take the form of a reversion to the traits of an 
inferior race. 

There is not the space to discuss at length the influence of 
race. Suffice it to say that in all probability this influence is' 
not so great as is generally believed. The reason for this popular 
belief doubtless is that the internal, mental differences between 
the races are assumed to be as great as the external differences 
are or appear to be. But most of the external and the physical 
differences are not so great as they appear to be. Furthermore, 
the internal, mental differences are not necessarily so great 
as the external, physical differences. It is needless to say that 
by the last remark I do not mean to imply that mind is not 
based upon matter, and that its nature is not determined in the 
last analysis by its physical basis. But the physical basis of the 
mind is to be found in the main in the nervous system, and the 
color of the skin, the stature, etc., are of little importance for 
the nervous system. 

So far as the available facts throw light upon the relative 
mentality of the different races, the situation seems to be some- 
what as follows. No differences between the brains of the 
different races have been found which are sufficiently extensive 
or of so crucial a nature as to justify the belief that there are 
any great differences in the intellectual traits of the different 
races. Furthermore, observations which have been made of the 
processes of thinking of the different races indicate that these 
processes are much the same the world over, the apparent dif- 
ferences probably being explicable in large part if not entirely 
by cultural variations. 

1 C. Lombroso, Crime, Its Causes and Remedies, Boston, 191 1, Part I. 
Chap. 3. See also his earlier discussion in his treatise on criminal man, 
{Uuomo deling uente, Vol. 1; Vhomme crimincl, Vol. I.) 



140 CRIMINOLOGY 

For similar reasons it is very doubtful if there are any material 
differences in the instinctive traits of the different races. The 
human instincts are deeply rooted not only in anthropoid but 
also in mammalian and vertebrate structure and organization, 
so that it is not to be expected that there are any material dif- 
ferences in these fundamental instinctive traits between the 
minor subdivisions of the human species. 

The same is doubtless true in the main of the affective traits 
as well. That is to say, the states of feeling and the emotions 
are in their main outline the same for the different races. But 
there are some reasons for believing that there is more variation 
in the affective makeup of the different races than there is in 
their intellectual and instinctive traits. 1 Modern psychological 
study of the emotions has indicated that they are governed and 
determined in the main by the so-called sympathetic nervous 
system. This part of the general nervous system controls the 
internal organs. Climatic differences give rise to considerable 
variation in the processes of these organs. The circulation of 
the blood varies somewhat with variations in the temperature. 
In similar fashion variations arise in the assimilative and ex- 
cretory processes. 

It is very probable, therefore, that variations in these physio- 
logical processes react upon the sympathetic nervous system, 
and thus give rise to variations in the emotional states. Further- 
more, it is possible that races tend to become more or less adapted 
to their climatic conditions by means of permanent changes in 
these physiological processes, thus giving rise to permanent 
variations in their emotional traits. 

It is possible that this theory explains in large part the varia- 
tion in the number of crimes against the person between hot 
and cold climates, which we have noted in Chapter IV. This 
variation would then be due in part to existing climatic differ- 
ences, and in part to differences in the emotional traits of races 
which have been caused by climatic conditions in the past. 2 

1 1 have advanced this theory in a brief article entitled Ethnic Factors in 
International Relations, in the Popular Science Monthly, Vol. LXXXV, 
August, iQ 14, pp. 146-153. 

2 For an intensive study of the influence of race upon one form of crime 
against the person, namely, homicide, see, E. Ferri, Vomicidio nelV antro- 
criminale, Turin, 1895, pp. 243-309. 



THE ORGANIC BASIS OF CRIMINALITY 141 

It is to be hoped that the influence of race upon cultural phe- 
nomena in general and upon the moral phenomena in which we 
are particularly interested will be carefully studied in the future. 
In the meantime it is well to beware of extreme statements of 
the influence of race in which its influence is obviously or in all 
probability being confused with the influence of other factors. 1 

1 For criticisms of these extreme statements see, N. Colajanni, La so- 
ciologia criminale, Catania, 1889, Vol. I, Chap. 6, Vol. II, Chap. 5; G. Aschaf- 
fenburg, Crime and Its Repression, Boston, 1913, pp. 30-51. 



CHAPTER X 
THE MENTAL BASIS OF CRIMINALITY 

Instinct — Habit — Feeling — Intelligence — Types of mental abnormality: 
amentia, dementia, insanity, the neuroses, abnormal habits — The 
mental inadaptability of the criminal — Mental defect and moral de- 
ficiency: moral imbecility and insanity — The social maladjustment 
of the criminal. 

In order to comprehend the mental states which lead to crim- 
inal conduct, both general and individual sources of information 
must be used. The general source is to be found in psychology. 
The science of psychology has, to be sure, developed as a result 
of the study of individuals. But these individuals have not 
usually been criminals, and the results of much of this study are 
of significance with respect to all kinds of human beings. The 
individual source of information is to be found in the study of 
individual criminals. The importance of this study is indicated 
by the fact that only by means of such study can be ascertained 
the peculiar features of criminal character. 

Instinct 

In the preceding chapter the three fundamental aspects of 
mind, namely, instinct, feeling, and intelligence have already 
been mentioned. In another work I have defined instinct in the 
following terms: — " An instinct is an inherited combination of re- 
flexes which have been integrated by the central nervous system so 
as to cause an external activity of the organism which usually 
characterizes a whole species and is usually adaptive." l The in- 
stincts are inherited modes of response to specific stimuli. Hu- 
man beings possess many instincts, some of which, or combina- 

1 The Science of Human Behavior, New York, 1913, p. 226. In Chapters 
Xl-XVI of that book I have described at considerable length the nature of 
instinct, feeling, and intelligence. That description furnishes a psycho- 
logical basis for the present chapter. The reader is referred to that book for 
further details. 



THE MENTAL BASIS OF CRIMINALITY 143 

tions of which in the form of " chain instincts," are very complex. 
Some of the most important and complex human instincts are 
the instincts of pugnacity and of flight, the sexual instinct, the 
hunting instinct, the parental instincts; while some psychol- 
ogists think that there are instincts of acquisition and of con- 
struction. 

The term " instinct" is frequently misused. It is often ap- 
plied to habitual modes of behavior which have been acquired 
and not inherited. Because of their regularity and persistence 
habits are frequently called instinctive by persons who do not 
recognize their origin. This is a grave error both for scientific 
and practical reasons, because the methods of influencing ac- 
quired habit and inherited instinct differ greatly. Furthermore, 
instinctive tendencies are often reenforced or inhibited in part or 
entirely by habit, and it is important to measure as accurately 
as possible the influence of habit upon instinct. In fact, it is 
probable that habit is always superimposed upon an instinctive 
basis, and both the scientific and the practical problem in the 
study of any kind of behavior is to determine to what extent it 
is due to hereditary factors and to what extent it is acquired. 

Many general modes of behavior which have an hereditary 
basis, but which are in the main acquired, are called instincts, 
as, for example, the so-called moral, religious, patriotic, benev- 
olent, political, and criminal instincts. These combinations of 
instincts and of habits may be called general innate tendencies. 
Among them are imitation, play, gregariousness, rivalry, work- 
manship, while even so general a trait as the tendency to form 
habits has been called a general innate tendency. 

Feeling 

Feeling is the most subjective part of the mental makeup. 
Consequently, it is more difficult to describe it in a concrete and 
objective manner than the other aspects of mind. It is, of course, 
difficult to describe any mental phenomena in concrete terms. 
However, instincts as tendencies towards definite modes of 
action involve visual, auditory, and other sensations which aid 
in making the concept of instinct more or less objective. The 
intelligence also, which we are about to discuss, contains ideas 
which arouse visual, auditory, and other memories which aid 
in making our conception of intelligence more or less concrete. 



144 CRIMINOLOGY 

But while all persons experience feeling, and have, therefore, 
what is, so to speak, an intimate inner knowledge of it; to 
define it in terms of the external world is practically impossible, 
because nothing that is it or for which it stands exists in that 
outer world in such a form that we can receive a sense impression 
of it. To be sure, each person has reason to believe that feeling 
exists outside of himself in his fellows, because of certain traits 
exhibited by his fellows which by analogy with himself he re- 
gards as .indirect manifestations of feeling. For example, if a 
fellow being exhibits a facial expression and motions which are 
similar to the expression and motions which accompany joyful 
feelings in himself, he naturally assumes that this fellow being 
is experiencing similar feelings. But, strictly speaking, he can 
have a firsthand knowledge of feeling only in himself. 

Notwithstanding the highly subjective nature of feeling, sev- 
eral facts are known about it. Elsewhere I have stated that 
"feelings are certain kinds of sensations, or, at any rate, certain 
aspects of certain kinds of sensations" 1 and have suggested that 
the feelings may comprize and be coextensive with the painful 
and pleasurable sensations. But even though it is impossible 
to define feeling precisely, we have ample evidence in our own 
personal experience of its existence, and of its potent influence 
upon behavior. It has this influence because painful feelings 
tend to inhibit the acts which give rise to them, or to draw the 
subject experiencing them away from the stimuli which cause 
them; while pleasurable feelings tend to reenforce the acts which 
give rise to them, and to draw the subject towards the stimuli 
which cause them. 

There are various kinds of feelings ranging from simple, 
highly localized feelings to complex, constitutional feelings. 
Some of the most complex feelings, or combinations of feelings, 
are called emotions. The emotions are aroused in the nervous 
system, and in the sympathetic nervous system in particular, 
apparently by the processes of the viscera and of the vascular 
system, and by the internal movements caused by muscular 
activity. Consequently, certain forms of activity, such as some 
of the instincts, are apparently accompanied by characteristic 
emotional states. Some of the most important emotions are 
anger, fear, jealousy, the sexual and parental emotions, etc. 

1 Op. cit., p. 297, 



THE MENTAL BASIS OF CRIMINALITY 145 

And, just as in addition to the distinct instincts there are the 
general innate tendencies to action, so in addition to the dis- 
tinct emotions there are general affective states such as envy, 
sympathy, shyness, sociability, etc. 

In popular parlance it is customary to confuse some of the 
instincts and emotions. For example, fear is frequently spoken 
of as being instinctive, by which is probably meant ordinarily 
that it is an hereditary trait. Instincts and emotions are alike 
in being inherited. But instincts are inherited tendencies to 
action, while emotions are states of feeling, so that instincts 
and emotions are not identical. They are, however, closely re- 
lated to each other, and the emotion of fear is probably most 
closely related to the instinct of flight. In similar fashion anger 
is frequently called an instinct, whereas it is evident that it is an 
emotion which is probably most closely related to the pugnacious 
or combative instinct. 

It is important to distinguish clearly between instincts and 
emotions, not only for scientific but also for practical reasons. 
It is impossible to influence criminal conduct, or any other kind 
of behavior, intelligently and therefore effectively without under- 
standing to what extent it is due to instinctive tendencies and to 
what extent to emotional states, because instincts and emotions 
must be treated in very different ways because of their radically 
different nature. Much intensive study is now being devoted 
by psychologists to the instincts and emotions, as a result of 
which the specific instincts and emotions will be segregated, 
and will be described in much greater detail than is possible at 
present. 

Intelligence 

The third fundamental aspect of mind, namely, intelligence or 
the intellect, plays an important part in the formation of habit 
and in directing conscious and unconscious behavior. Elsewhere 
I have said that "in an animal with a well-developed central 
nervous system which has acquired a large and varied store of 
memories, the behavior which results from a certain stimulus may 
be vastly different from the purely inherited reaction which would 
respond to that stimulus if these memories were not present to vary 
and complicate the behavior. Such behavior is intelligent, and the 



146 CRIMINOLOGY 

capacity for such variations in behavior constitutes intelligence." 1 
These memories, which are reproductions in the form of images 
of objects not actually present to the senses, and combinations of 
these memories, are ordinarily called ideas. 

In every intelligent animal the behavior is greatly influenced 
by ideas, so that a good deal of its activity is ideo-motor. In 
order to understand conduct, it is important to ascertain as 
accurately as possible to what extent it is ideo-motor. It is not 
possible otherwise to measure the influence of experience, train- 
ing, and learning, in other words, the influence of the environ- 
ment upon the individual. Much intensive study is now being 
devoted by psychologists to intelligence, so that it will be pos- 
sible in the future to measure more accurately the extent to 
which human behavior is determined by the intellect. 

We can now readily perceive how necessary it is to acquaint 
ourselves with both the normal and the abnormal mental traits 
of human beings in order to understand criminal conduct. 
Such conduct is, in a sense, an example of failure to cope suc- 
cessfully with the realities of life as conditioned by the existing 
social regime. Failure of this sort is due sometimes to the traits 
of the individual, sometimes to his social conditions, but usually 
to a combination of both of these factors. In other words, both 
the hereditary and the environmental factors must be studied in 
order to explain these failures. For example, criminal conduct 
may be due to the fact that certain instincts and emotions are 
unusually strong or unusually weak, or that the intellect is 
feeble. Or it may be due to the fact that the environment has 
not furnished the original nature of the criminal the education 
and discipline needed by every individual to become fitted for 
life in society. 

Types of Mental Abnormality 

Many classifications of the types of mental abnormality 
have been made, and in the present stage of the study of this 
subject it is difficult to devize one which is satisfactory from a 
scientific point of view. 2 But for practical purposes the follow- 

1 Op. cit., p. 265. 

2 1 have discussed mental abnormality at greater length in my book en- 
titled Poverty and Social Progress, New York, 1916. See especially Chapter V 
on the "Pathology of the Mind." 






THE MENTAL BASIS OF CRIMINALITY 147 

ing classification will serve, even though its divisions are not 
entirely mutually exclusive, and it can be criticized in other 
ways from a scientific point of view. (In this classification I 
am omitting the types of mentality which are abnormal in the 
sense of being much above the average, such as genius, since 
these types are of little significance for criminal conduct.) 
i. Amentia. 

2. Dementia. 

3. Insanity. 

4. Neuroses. 

5. Alcoholism, drug habits, etc., due to abnormal appetites. 
Amentia is due to subnormal cerebral development. That 

is to say, the brain never develops fully, so that the mentality 
is always seriously deficient. Dementia is due to cerebral dis- 
solution. That is to say, after the brain has developed it de- 
generates, thus giving rise to mental deficiency. Bolton indi- 
cates the neural basis of these two types of mental deficiency 
when he says that "the essential physical basis of mental dis- 
ease consists, on the one hand, in an imperfect development of 
the cell-laminae of the cortex which is of the nature of a true 
sub-evolution, and on the other of degrees of decrease of the 
cell-laminae which are of the nature of a true involution or 
dissolution, since such decrease in depth takes place in the con- 
verse order to that in which the cell-laminae developed during 
the period of normal growth." 1 In this passage Bolton is re- 
ferring, on the one hand, to amentia, and, on the other hand, 
to dementia. 

Insanity is a rather vague and therefore difficult word to 
define. It obviously indicates the absence of sanity. But it 
does not include the abnormal mental states which constitute 
amentia, though it may accompany amentia. Tredgold defines 
insanity as "the clinical manifestation of a disturbance or per- 
version of neuronic function, which may or may not terminate 
in degeneration." 2 According to this definition insanity is a 
derangement of thinking and conduct due to a pathological state 
of the nervous system which may degenerate and give rise to 
dementia. Bolton defines as a necessary precursor of dementia 
what he calls " mental confusion," which includes "the mental 

1 J. S. Bolton, The Brain in Health and Disease, London, 1914, p. 37. 

2 A. F. Tredgold, Mental Deficiency {Amentia), New York, 1914, p. 9. 



148 CRIMINOLOGY 

symptoms which occur in association with certain pathological 
states of the cortical neurones which may be followed by the 
recovery or by a more or less extensive dissolution of these 
elements." 1 

Both of these authorities apparently think that insanity 
may exist without dementia, but that insanity may develop 
into dementia. In the latter case, also, it goes without say- 
ing, the insanity still remains; for it is the name for the 
functional disturbance which arises as a result of a pathological 
neural state, which may consist of neuronic degeneration or 
may be merely a more or less temporary neural disturbance. 
It is a technical neurological question as to whether or not 
neuronic degeneration always is present in a case of insanity. 
There are many different kinds of insanity, some of which are 
prone to lead to criminal conduct. 

The neuroses are more or less general neuropathic states 
which may or may not accompany the abnormal mental states 
which have so far been mentioned. Four neuroses have been 
distinguished and described, though their nature is still rather 
obscure. They are epilepsy, neurasthenia, hysteria, and psy- 
chasthenia. These neuroses under certain conditions and in 
various ways lead to criminal conduct. 

There are many abnormal habits such as alcoholism, mor- 
phinism, and other drug habits. Whenever a person uses a 
narcotic or stimulant to excess, an abnormal habit exists. Con- 
sequently, there can be as many such habits as there are nar- 
cotics and stimulants. The habit may consist in the excessive 
use of tea, coffee, tobacco, alcohol, morphine, opium, cocaine, 
chloral, belladonna, hashish, bromides, chloroform, ether, etc. 
The habit itself is not a mental disease. Nor does it necessarily 
indicate the presence of a mental disease. This depends upon 
how the habit was acquired. A person may acquire one of these 
habits as a result of environmental influences, without having 
a previous morbid mental basis. But after acquiring the habit 
the excessive use of the stimulant or narcotic may and in many 
cases does cause a pathological neural condition, which in turn 
gives rise to a mental disease. 

In other cases the acquisition of the habit is preceded by a 
morbid mental and neural condition which proves to be a good 
1 Op. cit., pp. 138-9. 



THE MENTAL BASIS OF CRIMINALITY 149 

basis upon which the habit can grow. Just what this condition 
is we cannot ascertain exactly. But presumably the nerve cen- 
ters are sensitive in such a way or to such a degree that the 
stimulant or the narcotic gives an unusual amount of satisfac- 
tion. Consequently, when the subject makes the acquaintance 
of the stimulant or narcotic, it arouses in him a desire and crav- 
ing far surpassing that of the normal person, who desires it only 
to a moderate degree or not at all. Failure to overcome this 
craving results in the establishment of the habit, which is certain 
to accentuate the morbid mental and neural condition of the 
victim of the habit. These habits are frequently regarded as 
being in themselves criminal. However this may be, they often 
lead to criminal conduct. 



The Mental Inadaptability of the Criminal 

The traits characteristic of criminals at all times and places 
are of such a nature as to lead these individuals to violate the 
laws, and thus to incur the penalties for such violations. In 
other words, they are persons who are not well adapted to their 
environment, and therefore do not harmonize with it. They are 
unable to adapt themselves to the existing customs, standards, 
etc., of society. Some of these individuals cannot adjust them- 
selves to the existing social order, but might be able to adjust 
themselves to another kind of society. Other criminals are con- 
stitutionally incapable of adapting themselves to any kind of 
social system, thus constituting a universal type of criminal. 

There is a variety of reasons for the lack of social adaptability 
of the individuals belonging to this universal criminal type. It 
is determined immediately by the mental traits of the individual. 
But many different combinations of mental traits lead to this 
lack of adaptability, and it is frequently difficult to analyze the 
combination in a specific case. 

The first type is of those who cannot adapt themselves to the 
existing social regime because they believe it to be wrong, but 
who probably could not adapt themselves to any kind of social 
regime. This may be due to the fact that they have enough 
intelligence to discern the defects in the existing regime, but they 
lack self restraint because of an impetuosity of temperament 
which leads them to act upon their belief. Or it may be due to 



150 CRIMINOLOGY 

an intellectual instability combined with a general instability 
of character which makes it difficult for them to adapt themselves 
to any orderly system. Or it may be a combination of intel- 
lectual activity and instability with these other traits which 
leads them sometimes to commit crimes or to act in a manner 
which is regarded by society as immoral, though they themselves 
regard it as good. 

We need not discuss here to what extent their conduct 
is socially harmful and to what extent it is socially useful. 
This question will be discussed in the last part of this book. 
So far as their beliefs are concerned, they are similar to many 
other persons who see faults in the existing social regime 
and would like to have them corrected. But these persons, 
whether it be on account of lack of courage, or for reasons of 
personal expediency, or because they do not believe that such 
conduct will help to bring about these changes, do not commit 
criminal acts. 

This type includes not only the persons who are guilty of 
political crimes against the government, but also those who 
commit offenses against the law and violate the prevailing 
conventional standard of morality, such as labor agitators, suf- 
fragettes, socialists, anarchists, neo-Malthusians, free love ad- 
vocates, religious agitators, and all others who violate existing 
legal and moral conventions in the interest of a principle or of a 
social movement. Some of these offenders would doubtless 
become law-abiding if the changes they advocate came to 
pass. But others of them, who are of a restless nature, would 
probably continue to agitate and to rebel, even if their present 
ends were attained. 

This type is of a highly specialized kind which rarely if ever is 
numerous, and which should be sharply distinguished from the 
criminals in general. The vast majority of criminals either 
meditate very little or not at all upon the morality of their con- 
duct, or frankly regard it as immoral. Despite this fact they are 
impelled into criminal conduct either by their mental traits or 
by the forces of the environment. Let us see what some of the 
types amongst them are, simplifying these types more than in 
real life for purposes of study. 

A person may become criminal because of abnormal features 
in his instinctive makeup. This happens either because certain 



THE MENTAL BASIS OF CRIMINALITY 151 

instincts are unusually strong, or because they are unusually 
weak. For example, if the inborn pugnacious tendency is ab- 
normally strong, it may lead to numerous acts of violence. Or 
if the parental instincts are weak, it may lead to neglect of off- 
spring. If there is such a thing as an acquisitive instinct, as 
some psychologists think, it might, if unusually strong, lead to 
theft. 

In similar fashion a person may become criminal because of 
abnormal features in his affective makeup. For example, if 
the feelings connected with reproduction, sex, etc., are unusually 
strong, they may lead to crimes of passion. If these feelings are 
unusually weak, the individual will lack sympathetic feelings 
and will not be inhibited from inflicting pain upon other persons. 

The situation with respect to intelligence is somewhat differ- 
ent. The intelligence has no moral significance in itself. But 
.a strong intelligence is not so likely to be associated with these 
abnormalities of the instinctive and affective traits. A defect of 
the nerve centers which control the instinctive and affective 
processes is also likely to be a defect of the nerve centers which 
control the intellectual processes. A strong intelligence is able 
to comprehend social standards and their justification, though, 
as we have seen, in some cases it will knowingly and intention- 
ally violate these standards because it does not approve of them. 
A weak intelligence, on the contrary, is likely to be associated 
with these instinctive and affective abnormalities. Furthermore, 
it is more difficult for the weak intelligence to comprehend social 
standards and to see their justification. Consequently, the 
person of weak intelligence is prone to fall into immoral and 
criminal conduct. 

Mental Defect and Moral Deficiency 

When impairment of the intellect gives rise to immoral and 
criminal conduct, it is called moral imbecility, or moral insanity, 
or moral blindness. This condition is frequently described as 
if it is due to an impairment of a distinct moral sense. But in- 
asmuch as no inborn moral sense exists, moral deficiency can- 
not be a distinct abnormal type or morbid entity. Moral im- 
becility or moral insanity can only be due to a disability of the 
intellect, or of some other part of the mental makeup, of such a 



152 CRIMINOLOGY 

nature that it is difficult or impossible for the patient to under- 
stand moral ideas and to appreciate moral distinctions. 

We must, however, distinguish between moral insanity and 
moral imbecility, because this distinction has great practical 
significance. Insanity is a mental derangement which arises 
after birth, though it may be traced back in part to pre-natal 
conditions. Many kinds of insanity give rise to moral defective- 
ness. The moral imbeciles are persons born mentally defective 
who tend towards immoral and criminal conduct. They are 
found in all of the grades of the mentally defective, so that there 
are moral idiots, moral imbeciles, and moral morons. 

Tredgold has suggested that the moral imbeciles be called 
amorales, and that this type of mental deficiency be called 
amor alia. 1 Such deficiency probably characterizes the mental 
condition of a large proportion of those who become criminal 
owing to personal traits. This theory has been held by some 
criminologists in the past, as, for example, Lombroso, and it is 
interesting to note that several recent investigations reveal a 
rather high percentage of aments among criminals. 

In order to avoid the possibility of misunderstanding it may 
be well to call attention specifically to the fact that criminal 
conduct may result from abnormal and pathological mental con- 
ditions where there is no intellectual incapacity. For example, 
this will happen when there is no impairment of the higher asso- 
ciation centers, but when criminal conduct results from impair- 
ment of the sympathetic nervous system. Persons who are ob- 
viously of high intellectual capacity sometimes commit crimes of 
passion. Whether or not these persons are insane depends upon 
the definition of the word insanity, which is at best an extremely 
vague term. 

We can now see that man's moral nature, like the rest of his 
mental makeup, is determined by his instinctive, affective, and 
intellectual traits, and his experience and training in life. Con- 
sequently, moral deficiency may be due to abnormality in any 
one of these traits. For example, it may be due to inability to 
grasp the meaning of moral ideas and standards. Or it may be 
due to abnormally strong impulses which cannot be restrained. 
Or it may be. due to abnormally weak restraining powers. 

1 A. F. Tredgold, Mental Deficiency {Amentia), London, 1914, "Table of 
Synonyms" in the Appendix. 



THE MENTAL BASIS OF CRIMINALITY 1 53 

This excessive strength or weakness may be due to abnormally 
strong or abnormally weak instinctive tendencies and emotional 
states. 

Much immorality and criminality is due to training and force 
of circumstances. But in any case where moral deficiency is not 
due merely to the immediate environment and training, but is 
due at least in part to congenital traits, it is due to abnormality 
in at least a part of the mental makeup. 1 Consequently, the 
so-called born criminal, of which there are several types, may be 
a moral imbecile, or he may have inherited abnormalities which 
impel him almost irresistibly towards certain kinds of criminal 
conduct. The insane criminal is obviously laboring under a 
mental disability, and there are almost as many kinds of insane 
criminality as there are types of insanity. The criminal by 
passion may commit his crime owing to peculiarities of his sym- 
pathetic nervous system. 

The Social Maladjustment of the Criminal 

It is now clear in what sense it is true that the criminal class 
is at all times and places made up in part of persons who can- 
not adapt themselves to organized society. But I should like 
to reiterate that the difference between these persons and man- 
kind in general is only one of degree. No person can become 
perfectly adapted to the social system under which he lives. 
Every one violates moral, legal, and social conventions to a 
certain extent, and every person is abnormal and pathological to 
a certain extent. And this failure to become perfectly adapted 
is by no means entirely the fault of the individual, but in part 
of the social system, because there has never yet been and prob- 
ably never will be a system of society which is perfect. However, 
most individuals acquire enough knowledge and develop enough 
self control to enable them to get along fairly well with their 
fellows, and to avoid violations of the conventions of society so 
flagrant in their nature as to bring upon them severe pen- 
alties. 

1 The English Mental Deficiency Act defines "moral imbeciles," by which 
it apparently means all of the moral defectives, as "persons who from an 
early age display some permanent mental defect coupled with strong vicious 
or criminal propensities on which punishment has had 'little or no deterrent 
effect." 



154 CRIMINOLOGY 

But there always remains the group which for various reasons, 
is incapable of adjusting itself successfully to the social order. 
Consequently, its members become stigmatized as criminals. 
It is impossible to state accurately what proportion of the crim- 
inal class this group constitutes. It includes all of the so-called 
born criminals, and all of the criminals who are aments. It 
probably includes a goodly proportion of the criminal class, 
perhaps more than half. 

In addition to those whose physical and mental traits make 
it difficult or impossible for them to adapt themselves to any 
social order, there are always some persons who have difficulty 
in adjusting themselves to the existing order, but might become 
adjusted to a different one. This group, however, is not likely 
to become large, because as it grows in size it exerts more and 
more influence to change the existing order. For example, 
in many communities in this country it has been regarded as 
immoral and frequently penalized by the law to do certain things 
on Sunday. So that the theaters have been closed and the play- 
ing of games in public has been prohibited by Sabbatarian legis- 
lation. But as the result of the incoming of many Europeans 
who are accustomed to the so-called " Continental " Sunday, 
and who have refused to regard these acts as wrong, these laws 
have been repealed or have become dead letters in many places, 
and public sentiment has gradually changed, so that it is no 
longer generally regarded as immoral and criminal to do these 
things. 

In the last place, there are the persons who are not abnormal 
or pathological to an unusual degree, but who become criminal 
through the forces of the environment. This may be due to 
lack of education which makes it difficult for them to make their 
way in the world. On account of this lack of education they 
have not been taught moral ideas early in life, or have been 
taught perverted moral ideas. Inasmuch as there is no inborn 
moral sense, it is difficult for any one who has not had this early 
training to understand moral ideas or to appreciate moral dis- 
tinctions, because the associations have not become established 
in their brains which are necessary for the proper functioning 
of the so-called moral faculties. From this group are recruited 
some of the professional criminals. 

There are many other environmental factors which give rise 



THE MENTAL BASIS OF CRIMINALITY 155 

to crime. Many of the occasional criminals are led to commit 
crimes by external circumstances, and in spite of their more or 
less normal character. In many of these cases these circum- 
stances have been brought into being by poverty and its attend- 
ant evils. These environmental factors for crime are described 
elsewhere in this book. 



CHAPTER XI 
CRIMINAL AMENTS 

Characteristic traits of criminal aments — The measurement of mental 
ability — The extent of criminal amentia. 

In recent years much study has been devoted to the aments, 
or the feebleminded, as they are ordinarily called. This study 
has revealed the fact that some of these feebleminded folk are 
morally deficient in the sense that they are intellectually in- 
capable of grasping the meaning of moral ideas, frequently lack 
the self control and will power to restrain themselves from acts 
which are harmful to themselves or to others, and for other 
reasons connected with their mental defectiveness are fre- 
quently led into criminal conduct. Furthermore, numerous 
criminological investigations have revealed the presence of 
many of these aments among criminals. So that there is reason 
to believe that among the criminal aments are many of the so- 
called "born" or "instinctive" criminals, which are included in 
several of the classifications of criminal types. 1 

In similar fashion, these investigations have furnished con- 
clusive evidence in support of the opinion that the "moral 
imbecility" or "moral insanity" of Lombroso and other crim- 

1 Healy expresses the opinion that the "born" criminal is to be found 
among the mentally abnormal: "The gist of the whole situation concerning 
' born criminals ' is that they are individuals who definitely belong in the 
scientific categories of mental defect and mental aberration. They show, by 
reason of early teaching, of environmental opportunities, of developed habit 
of mind, or such physical conditions as abnormal sexuality, a very definite 
tendency to criminalism. They are primarily mentally abnormal, and 
secondly, criminalistic." (William Healy, The Individual Delinquent, Boston, 
1915, p. 782.) 

Dr. Healy 's book on the individual delinquent is, unfortunately, badly 
written and organized, and deals almost exclusively with young delinquents. 
But it contains a vast amount of valuable information concerning many 
individual criminals, and is very suggestive of the diversity of criminal 
types, and the great variety and complexity of the causes of their criminality. 



CRIMINAL AMENTS 157 

inol ovists is not a distinct morbid entity, but is one phase of 
feeblemindedness. 1 It is, therefore, probable that the strong 
resemblance of "born criminality" to "moral imbecility," if 
not indeed their identity, which was suspected by Lombroso, 
may be due to the fact that both of them are manifestations of 
feeblemindedness. 

Characteristic Traits of Criminal Aments 

Aments, or feebleminded persons, become criminal because, 
by reason of their intellectual disability, they are unable to make 
their way in the economic and other activities of society, and 
because, if not kept under custodial care, they are likely to run 
foul of the law. Their intellectual disability reveals itself not 
only by their blundering into crime, but also by the blundering 
way in which they commit their crimes. 

Goring, who has observed many criminals, was impressed by this 
fact and states it as follows: — " Unteachable, unemployable, a 
nuisance to themselves and everyone else, without a place in the 
economic regime of a law-abiding community, the position of un- 
supervised mental defectives is extremely forlorn, and can hardly fail, 
in the long run, to compel them to swell disproportionately the crim- 
inal ranks. But probably the chief source of the high degree of rela- 
tionship between weak-mindedness and crime resides in the fact that 
the criminal thing which we call criminality, and which leads to the 
perpetration of many, if not of most, anti-social offences to-day, is not 
inherent wickedness, but natural stupidity. At any rate, we need only 
study the penal record of habitual criminals to realize fully that the 
one characteristic of the offences of 90 per cent, of the 150,000 persons 
convicted to prison every year — the one characteristic, apart from 
their intolerableness in a well-ordered society, is the incredible stupid- 
ity of these offences." 2 

But the aments are likely to become criminals not only be- 
cause of their intellectual disability, but also on account of 
abnormalities in other parts of their mental makeup. The sub- 
normal cerebral development characteristic of amentia is very 

1 Healy expresses the same opinion as follows: "Our own conclusion, to 
repeat, is simply, that if the 'moral imbecile' exists who is free from all other 
forms of intellectual defect, he must indeed be a rara avis." (Op. cit., p. 788.) 

2 C. Goring, The English Convict, London, 1913, p. 262. 



158 CRIMINOLOGY 

likely to affect the instincts and feelings as well as the intellect. 
Consequently, some of the instincts may be excessively strong 
or excessively weak, and the same may be true of certain of the 
emotions. In some of these cases the instinctive and affective 
abnormality is prone to stimulate criminality. For example, 
the emotions of anger and of jealousy may be unusually strong, 
thus leading to crimes of violence; or the parental, sexual, and 
other emotions which form the basis of the sympathetic nature 
of man may be weak, thus making the individual indifferent to 
the interests and welfare of his fellows. On account of the ex- 
treme complexity of the human mind it is very difficult to dis- 
tinguish between and segregate for purposes of study the in- 
stinctive, affective, and intellectual elements. But in view of the 
close inter-relations between the different parts of the mind, there 
is good reason to believe that in most if not all cases of amentia 
all of these parts are affected. 

The following graphic descriptions of the moral deficiency 
which arises from amentia indicate how it leads to crime. The 
first statement exaggerates somewhat the immorality of these 
defectives, except in the extreme cases. 

Sherlock has characterized the moral defectives in the following 
words: — 

"Clinically the signs of moral feeble-mindedness are, in a typical 
case, those of unqualified viciousness, by which is meant that the 
activities of the individual are designed to satisfy his present desires 
without any reference to the bearing of such a course on himself or 
others. Judged by the accepted standard of morals, he is purely 
selfish. He has no affection for his relatives, no sense of personal or 
family honour, and no reverence for family ties; and he will commit 
an offence against a member of his family as readily as against a 
stranger: there is thus not even a rudiment of the social instinct. In 
his relations with the world at large, he shows an entire lack of sym- 
pathy with man and beast, and may even be actively cruel. Altruism 
is entirely foreign to his nature; he is untruthful, obscene, lustful, 
unstable, restless, devoid of discretion, and unregulated as to his 
imagination. He makes no friends, and is averse from doing any work; 
he knows neither gratitude, shame, nor repentance, and is, as Maier 
found in a well-marked case, so completely impervious to reproaches 
and appeals that they produce in him no obvious emotional reaction, 
whether as regards facial expression, bodily movement, the pulse and 
respiration rates, or speech. To the law he is known as thief, train- 



CRIMINAL AMENTS 1 59 

wrecker, incendiary, or murderer; or as addicted to assaults, and 
sexual offences of all kinds." l 

Another writer on the feebleminded has stated the relation be- 
tween feeblemindedness and criminality in the following language: — 

"Every feeble-minded person is a potential criminal. This is nec- 
essarily true since the feeble-minded lacks one or the other of the 
factors essential to a moral life — an appreciation of right and wrong, 
and the power of control. If he does not know right and wrong, does 
not really appreciate this question, then of course he is as likely to do 
the wrong thing as the right. Even if he is of sufficient intelligence and 
has had the necessary training so that he does know, since he lacks the 
power of control he is unable to resist his natural impulses. 

"Whether the feeble-minded person actually becomes a criminal 
depends upon two factors, his temperament and his environment. If 
he is of a quiet, phlegmatic temperament with thoroly weakened 
impulses he may never be impelled to do anything seriously wrong. In 
this case when he cannot earn a living he will starve to death unless 
philanthropic people provide for him. On the other hand, if he is a 
nervous, excitable, impulsive person he is almost sure to turn in the 
direction of criminality. Fortunately for the welfare of society the 
feeble-minded person as a rule lacks energy. But what ever, his tem- 
perament, in a bad environment he may still become a criminal, the 
phlegmatic temperament becoming simply the dupe of more in- 
telligent criminals, while the excitable, nervous, impulsive feeble- 
minded person may escape criminality if his necessities are provided 
for, and his impulses and energies are turned in a wholesome direc- 
tion." 2 

Tredgold emphasizes in particular the impulsiveness and lack of 
will power of the criminal aments. Speaking of the impulses of moral 
defectives, he says that "they take the form of an impulse to steal 
(kleptomania); to set things on fire such as commons, heaths, hay- 
stacks, and houses (pyromania); to mutilate horses and cattle; and, 
by no means rarely, to commit homicide. It is perhaps a moot point 
whether one should regard cases of this kind as dependent upon a dis- 
order of association and ideation, or upon a defect of will. It may be 
that the impulses have such an impelling power that no ordinary 
volition would be capable of withstanding them, and that conse- 
quently they should be placed in a separate category, under the head- 
ing of 'morbid impulses.' On the other hand, they are frequently 
resisted, and when this does not occur it may be owing to a defect of 
will. However this may be, there is no doubt that recurrent impulses 

1 E. B. Sherlock, The Feeble-M hided, London, iqii, pp. 102-3. 
2 H. H. Goddard, Feeble-M iudedness, New York, 1914, pp. 514-515. 



l6o CRIMINOLOGY 

of this kind occur periodically and with tolerable frequency in certain 
aments, and that the inability to resist them brings such persons 
within the class of incorrigible moral defectives. It occasionally hap- 
pens that the impulse is not of this definite character, there being 
simply a general explosiveness which causes the individual to kick 
over the traces on any and every occasion. Lastly, it is to be noted 
that neither the presence of morbid impulses nor of defective will are 
incompatible with a normally developed moral sense." x 

Classifications have been devized of the aments who are likely 
to become criminals. For example, Sherlock classifies the moral 
defectives as (i) the unstable, (2) the mendacious, (3) the sexual, 
(4) the contentious. 2 Tredgold classifies them as (1) the morally 
perverse or habitual criminal type, (2) the facile type, (3) the 
explosive type. 3 He describes the first type in his classification 
as follows : — " In my experience they commit crimes, not be- 
cause they are deficient in will or are passionate and excitable, 
like those to be presently considered, but because they are either 
possessed of ineradicable antisocial propensities, or really cannot 
appreciate the difference between right and wrong. They are, 
in fact, fundamentally lacking in moral sense, and this, together 
with the defect of judgment which is always present, causes 
them to be absolutely irreformable." 4 

Tredgold characterizes the second type in the following 
words: — "In this type of morally defective person the com- 
mission of crimes and acts of immorality does not appear to be 
so much due to any want of appreciation of the difference be- 
tween right and wrong, or to any pronounced criminal propensi- 
ties, as to the fact that the individuals are so lacking in will 
power as to be unable to steer a right course against resistance; 
they must go with the stream, and hence the extent of their 
criminality is dependent upon the nature of their environ- 

1 A. F. Tredgold, Mental Deficiency (Amentia), London, 1914, pp. 318-319. 
Tredgold also recognizes a type of defective will characterized by "a general 
inertia." The moral defective possessing this type of will "is facile, he sim- 
ply follows the line of least resistance, and is swayed this way or that ac- 
cording to the happenings of the moment. It is obvious that the behaviour 
of such an individual will be entirely dependent upon the nature of his 
environment." (P. 317.) 

2 Op. tit., pp. 193-196. 

3 Op. cit., pp. 326-337. 

4 Op. cit., p. 326. 



CRIMINAL AMENTS l6l 

ment." 1 The third or "explosive" type is characterized by 
sudden, irresistible impulses "closely resembling the motor 
convulsions of an epileptic." 2 This type is described in the 
above quotation from Tredgold. 

The Measurement of Mental Ability 

Let us now consider briefly the extent of amentia among 
criminals. In order to measure its extent accurately two things 
are requisite. In the first place, a scientifically exact and reli- 
able test of mental ability must be devized. In the second 
place, the sample group which is examined must not be a selected 
one, but must be made up of individuals who have been taken 
at random from the criminal class in general, and who therefore 
truly represent the whole class. 

The first of these conditions is only partially fulfilled as yet. 
During the last few years much effort has been devoted by 
psychologists to devizing satisfactory mental tests. One of 
the first devized is the famous Binet-Simon test, which has been 
several times revized by its authors and by others. 3 This test 
was devized largely as the result of study of school children 
and of abnormals in institutions. It classifies mental defectives 
by comparing their mental ability with that of children, and 
places them in the same mental age groups with children. Adults 
who display a mentality like that of infants from one to three 
years of age are classified as idiots, those who display a mental- 
ity like that of children from three to seven years of age are 
classified as imbeciles, and those who display a mentality like 
that of children from seven to twelve years of age are classified 
as feebleminded. According to some of the psychologists who 
have used this test, children under ten years of age who are 

1 Op. cit., pp. 331-332. 

2 Op. cit., p. 334. 

3 See articles by A. Binet and T. Simon in L'annes psychologique, Vols. XI 
(1905), XIV (1908), XVII (191 1). Also see English translations of their 
works entitled A Method of Measuring the Development of the Intelligence of 
Young Children, Chicago, 1913; Mentally Defective Children, London, 1914. 
For revisions of the Binet-Simon test see H. H. Goddard, The Binet-Simon 
Measuring Scale of Intelligence, Vineland, N. J., 191 1; L. M. Terman and 
H. G. Childs, A Tentative Revision and Extension of the Binet-Simon Measur- 
ing Scale of Intelligence, in the Jour, of Educational Psychology, Feb. to May, 
1912. 



1 62 CRIMINOLOGY 

mentally more than two years behind their age are feeble- 
minded, also children of ten years of age and over who are 
mentally more than three years behind their age. 

Another mental test, which is of special interest to us because 
it was devized in the course of a study of delinquents, is the 
Healy test. 1 Other mental tests which might be mentioned are 
the de Sanctis test, 2 the Yerkes-B ridges test, 3 etc. 

The second condition has not been fulfilled at all, and indeed 
can never be attained. It will never be possible to draw in- 
dividuals at random from the criminal class in general for pur- 
poses of examination. The only persons who can be examined 
are those in prisons, reformatories, and elsewhere, who have 
fallen under the restraint of the law. These groups are highly 
selected with respect to mental defect, because criminal aments 
are much more likely to get caught by the law than other crimi- 
nals. Furthermore, criminal aments are more likely to become 
segregated in reformatory and similar institutions than other 
types of criminals. So that it is to be expected that the per- 
centage of mental defectives in these groups will always be 
much higher than among criminals in general. The most that 
can be done to obviate this difficulty is to compute roughly 
the degree to which these groups are selected with respect to 
mental defectiveness, and then discount accordingly in estimat- 
ing the extent of mental defectiveness in the criminal class in 
general. 

The fact that these two conditions have not been fulfilled 
doubtless accounts for the wide variation between the estimates 
which have so far been made, and the exaggerated size of some 
of these estimates. Different tests have been used and they have 
been applied by persons who have varied greatly in their com- 
petency to use them. The degree to which the different groups 
have been selected has varied greatly, but this factor has in 
many cases not been recognized by the investigator. Before 
the present state of confusion with respect to this question can 

1 W. Healy and Grace M. Fernald, Tests for Practical Mental Classifica- 
tion, in The Psychological Monographs, Vol. XIII, No. 2, March, 19 it. 

2 S. de Sanctis, Mental Development and the Measure of the Level of Intelli- 
gence, in the Jour, of Educational Psychology, Vol. II (191 1), pp. 498-507. 

3 R. M. Yerkes, J. W. Bridges and Rose S. Hardwick, A Point Scale for 
Measuring Mental Ability, Baltimore, 1915. . 



CRIMINAL AMENTS 163 

be removed, it will be necessary to devize a satisfactory stand- 
ardized mental test, and to compute as carefully as possible 
the degree of selection in each group examined. 1 

The Extent of Criminal Amentia 

I shall now summarize briefly several investigations of the 
extent of amentia among criminals. 

The British Royal Commission on the Care and Control of 
the Feeble-minded, whose report was published in 1908, gathered 
a few random and rather unreliable statistics with respect to 
the number of mentally defective persons in the British penal 
institutions. For example, the medical officer of the Penton- 
ville prison expressed the opinion that "there are not less than 
20 per cent of the prisoners who show signs of mental ineffi- 
ciency." 2 The medical inspector of the Prison Commission 
expressed the opinion that in the local prisons at least 3 per 
cent of the prison population should be returned as mentally 
defective. 3 Such opinions are of little value unless accompanied 
by definite figures of the number of persons examined, and a 
description of the kind of examination or test applied. 

It was also ascertained by the Commission that "sixteen 
per cent, of the patients at the State criminal lunatic asylum 
at Broadmoor were 'cases of congenital or infantile mental 
deficiency — the proportion of both sexes being about the 
same.' " 4 The medical investigators of the Commission visited 
local prisons, casual wards, shelters, etc., and saw 2,353 prisoners. 
Of these 242, or 10.28 per cent, were found to be mentally defec- 
tive. 5 

Goring in his investigation of English convicts studied their 
mental capacity. It does not appear from his report that he 
used rigorous psychological tests. With respect to mental de- 

1 One investigator states the present situation as follows: — "We have at 
present no reliable means of diagnosing the grade of intelligence of the aver- 
age reformatory case. Work now being done by a number of different 
psychologists will probably in the near future provide mental tests that will 
mark a big advance over present methods. A refinement of clinical pro- 
cedure may also add to the solution of this problem." (F. Kuhlmann, The 
Mental Examination of Reformatory Cases, in the Jour. Crim. Law, Vol. V, 
No. 5, Jan., 1915, pp. 666-674.) 

2 Report of the Commission, London, 1908, Vol. VIII, p. 123. 

3 Op. cit., p. 124. 4 Op. cit., p. 125. 5 Op. cit., p. 131. 



164 CRIMINOLOGY 

fectiveness among criminals he came to the following conclu- 
sion: — "Accordingly, against the .45 per cent, of defectives 
in the general population, the proportion of mentally defective 
criminals cannot be less than 10 per cent., and is probably not 
greater than 20 per cent. It is clear that criminals, as a class, 
are highly differentiated mentally from the law-abiding classes." 1 
He computed the following correlation coefficient between crim- 
inality and mental deficiency among the convicts he studied: — 
"The correlation coefficient with criminality of alcoholism is .39, 
of epilepsy is .26, of sexual profligacy is .31, and of mental de- 
ficiency is .64. From the high value of the last coefficient we 
would presume that, if reducible to one condition, it is mental 
defectiveness which would most likely prove to be the common 
antecedent of the alcoholism, epilepsy, insanity and sexual 
profligacy." 2 

Goring also studied the percentage of mental defectives 
among the persons committing the different -kinds of crimes 
in the group of convicts covered by his investigation. He pre- 
sents his results in the following table: — 3 

Percentage of Mental Defectives Among Persons Committing 

Criminal Offenses, and in the General Population 

(948 Convicts) 

Firing of stack 52 9 

Wilful damage, including maiming of animals 22. 2 

Arson 16. 7 

Rape (child) 15.8 

Robbery with violence 15.6 

Unnatural (sexual) offences 14.3 

Blackmail 14.3 

Fraud - 12.8 

Stealing (and poaching) 1 1 . 2 

Burglary 10 . o 

Murder and murderous intent : 9.5 

Rape (adult) 6.7 

Receiving 5.1 

Manslaughter 5.0 

Coining 3.3 

Wounding; intent to wound, striking superior officer 2.9 

Embezzlement, forgery, fraudulence as trustee, bigamy, performing il- 
legal surgical operation 0.0 

General population 5 

1 C. Goring, op. cit., p. 255. 2 Op. cit., p. 262. 

8 Op. cit., p. 258. 



CRIMINAL AMENTS 165 

Goring comments upon this table as follows: — "It is particularly 
interesting to note that the percentage of mentally defective mur- 
derers is nearly twice as great as the percentage of persons convicted 
of other forms of personal violence; that receivers of stolen goods and 
coiners are on the average much more intelligent than thieves; that 
stack-firing, which is a crime of passion, associated more highly than 
any other with imbecility, must be distinguished from other forms of 
arson, which are crimes perpetrated by persons of much higher grade 
of intelligence, and for motives of personal gain ; that indecent assaults 
upon children, and unnatural sexual offences, are related to weak- 
mindedness much more than are crimes of rape upon adults; and that 
embezzlement, forgery, and all kinds of fraud are peculiarly intelligent 
crimes, absent in a marked manner from the records of mentally 
defective persons." 1 

Tredgold has studied this problem from a somewhat different 
point of view. Instead of studying the mental defectives among 
the criminals, he has studied those displaying criminal and 
vicious tendencies among the mentally defective. Inasmuch 
as he has described rigorous physiological and mental tests as 
being his methods of investigation, we have reason to believe 
that his results are worthy of much weight. He states his con- 
clusions as follows: — 

"It seems likely that the nearest approximation to the true in- 
cidence will be gained by approaching the question from another 
standpoint, and considering what proportion of the mentally de- 
fective evince pronounced criminal and anti-social tendencies. My 
investigations in Somersetshire showed that this proportion was 10 per 
cent., which corresponds to a total of about 13,000 moral defectives 
in England and Wales in the year 1906. The total number of persons 
tried for indictable offences during the preceding year was 61,463; on 
the assumption that 20 per cent, of these were mentally deficient, the 
number of these latter would be a little over 12,000. We shall, there- 
fore, probably not be far wrong in saying that the number of persons 
in England and Wales coming within the legal definition of moral de- 
fect was between 12,000 and 13,000 in 1906." 2 

Goddard has prepared a list of sixteen reformatories and in- 
stitutions for delinquents in the United States in which the 
number of mental defectives has been estimated. According 

1 Op. tit., p. 258. 

2 A. F. Tredgold, op. cit., p. 325. 



1 66 CRIMINOLOGY 

to these estimates, the percentages of defectives in these institu- 
tions range from 28 per cent to 89 per cent, the higher percent- 
ages preponderating, only three of them being under 50 per 
cent. From this list he draws the following conclusion: — " A 
glance will show that an estimate of 50 per cent is well within 
the limit. From these studies we might conclude that at least 
50 per cent, of all criminals are mentally defective." * He also 
states with respect to prostitution that "many competent 
judges estimate that 50 per cent of prostitutes are feeble- 
minded." 2 In a later work he reiterates the above conclusion 
by saying that "the best estimate and the result of the most 
careful studies indicate that somewhere in the neighborhood 
of 50 per cent of all criminals are feeble-minded." 3 

Goddard indicates that Binet tests were used in five of the 
institutions in his list, but there is no indication as to how rigor- 
ous were the tests used in the other institutions. Furthermore, 
there is no indication as to the extent to which the inmates of 
each institution were admitted as a result of an intentional 
or unintentional process of selection with respect to mental 
capacity. The number of persons examined in each case is not 
known. For all of these reasons Goddard's sweeping conclu- 
sion is wholly unwarranted and unjustifiable. 4 

Goddard is of the opinion that most of the feebleminded criminals 
have inherited their mental defectiveness. He says that " careful 
studies have shown beyond the peradventure of doubt that at least 
two-thirds of these mental defectives have inherited their defect; in 
other words, that they belong to strains of the human family whose 
intelligence lies below that which is required for the performance of 
their duties as citizens." 5 Consequently, he thinks that the so-called 
"born" criminal is in reality the feebleminded criminal. "The 
hereditary criminal passes out with the advent of feeble-mindedness 
into the problem. The criminal is not born; he is made. The so-called 
criminal type is merely a type of feeble-mindedness, a type misunder- 

1 H. H. Goddard, Feeble-Mindedness, New York, 19 14, p. 9. 

2 Op. cit., p. 15. 

3 The Criminal Imbecile, New York, 1915, p. 106. 

4 It is much to be regretted that Goddard displays a tendency to exag- 
gerate greatly the extent of amentia. It is all the more surprizing in view 
of the fact that he apparently uses careful mental tests in his own investiga- 
tions. 

5 The Criminal Imbecile, p. 106. 



CRIMINAL AMENTS 167 

stood and mistreated, driven into criminality for which he is well 
fitted by nature. It is hereditary feeble-mindedness not hereditary 
criminality that accounts for the conditions. We have seen only the 
end product and failed to recognize the character of the raw mate- 
rial." * 

Healy made a careful study of one thousand young repeated 
offenders. Among them he found 89 morons or high-grade 
feebleminded, and 8 imbeciles. 2 He comments upon these 
results as follows: — "As beyond peradventure feebleminded, 
we found about 10 per cent, but the figure will be increased as 
some of the younger in the lower groups fail to advance with 
age." 3 As to the criminal feebleminded he speaks as follows: — 
"Just what percentage of delinquents are feebleminded appears 
to be a matter of perennial interest, but well-founded statistics, 
even if obtained in particular places, may not be applicable to 
different situations. There can be no doubt that separate re- 
formatory or prison populations if tested would show from 10 
to 30 per cent or even more, to be feebleminded. . . . No 
essential purpose is subserved by exaggerated statements con- 
cerning the proportions which might be found in court work, 
or in various penal institutions." 4 

Healy also found in the same group of 1,000 young re- 
peated offenders 81 of subnormal mentality, namely, persons pos- 
sessing considerably more educability than the feebleminded; 
and 69 suffering from psychosis, under which term he includes 
insanity. 5 

Hickson examined 245 boys in the Boys' Court in Chicago and 
found that 207, or 84.49 P er cent, were distinctly subnormal 
morons. 6 He used Binet-Simon and other mental tests. But the 
individuals he examined formed a highly selected group in which 
a high degree of mental defectiveness was to be expected. 

Bowers examined 100 recidivists, or incorrigible habitual 
criminals, in the Indiana State Prison and found that 23 were 

1 Feeble-Mindedness, p. 8. 

2 W. Healy, The Individual Delinquent, New York, p. 130. 

3 Op. cit., p. 140. 

4 Op. cit., p. 447. 

5 Op. cit., p. 139. 

6 W. J. Hickson, The Defective Delinquent, in the Jour. Crim. Law, Vol. V, 
No. 3, Sept., 1914, pp. 397-403- 



1 68 CRIMINOLOGY 

feebleminded, 12 were insane, 38 were constitutionally inferior, 
17 were psychopaths, and 10 were epileptics. 1 He does not 
state what tests he used. It is evident that this was a highly 
selected group. 

Bronner examined 505 boys and girls in the Detention Home 
of the Juvenile Court of Cook County in Chicago, using Binet- 
Simon and other tests. Her conclusion is as follows: — "On the 
basis of a study of more than 500 cases in a group as little selected 
as is possible to obtain, we find the percentage of feebleminded 
to be less than 10 per cent., while the group of those normal in 
ability exceeds 90 per cent." 2 

Spaulding examined 400 women in the Massachusetts Re- 
formatory for Women at South Framingham, Mass., using 
Binet-Simon, Healy, and other tests. She found that 16.8 per 
cent were feebleminded, and 26.8 per cent showed mental sub- 
normality (slight mental defect). Furthermore, she found that 
15.2 per cent gave a history of epilepsy, 11.0 per cent showed 
manifestations of hysteria, 4.0 per cent had at some time been 
confined in hospitals for the insane, and 7.7 per cent showed 
marked neuropathic or psychopathic tendencies. The ab- 
normal mental cases represented 37.2 per cent of the whole 
number. 3 

Williams examined 215 boys in the Whittier State School in 
California, using the Stanford Revision of the Binet-Simon 
Measuring Scale of Intelligence. He found that 32 percent of 
these 215 delinquent boys were feebleminded, and 21 per cent 
on the borderline. 4 

Haines examined 1,000 delinquent young boys and girls — 
671 boys and 329 girls — at the Bureau of Juvenile Research, 
Columbus, Ohio. He found that, judged by the Binet-Simon 
test, 57 per cent were feebleminded; by the Yerkes-B ridges test, 

1 P. E. Bowers, The- Recidivist, in the Jour. Crim. Law, Vol. V, No. 3, 
Sept., 1914, pp. 404-415. 

2 Augusta F. Bronner, A Research on the Proportion of Mental Defectives 
among Delinquents, in the Jour. Crim. Law, Vol. V, No. 4, Nov., 19 14, 
pp. 561-568. 

3 Edith R. Spaulding, The Results of Mental and Physical Examinations of 
Four Hundred Women Offenders, in the Jour. Crim. Law, Vol. V, No. 5, 
Jan., 1915, pp. 704-717. 

4 J. H. Williams, Intelligence and Delinquency, in the Jour . Crim. Law, 
Vol. VI, No. 5, Jan., 1916, pp. 696-705. 



CRIMINAL AMENTS 1 69 

29 per cent were feebleminded. He concluded finally that 24 
per cent of these 1,000 cases were undoubtedly feebleminded. 1 

Rossy examined 300 criminals in the Massachusetts State 
Prison by the revized Yerkes-B ridges point scale. They ranged 
from sixteen to eighty-six years of chronological age. Of these 
22 per cent (66 cases) were feebleminded; 9.6 per cent were on 
the borderline between amentia and normal mentality; 3.3 per 
cent were presumably psychotic; and 65 per cent were "not di- 
agnosed." Of the 66 feebleminded criminals, 24 had committed 
sex offenses, 22 had committed crimes against property, and 20 
had committed crimes against life. 2 

It is obvious that the estimates of the prevalence of amentia 
among criminals which have been cited vary greatly in their 
reliability. Some of them are incredibly high, as, for example, 
Goddard's minimum estimate of 50 per cent. There is reason 
to believe that some of these exaggerated estimates are due to 
defects in the Binet-Simon test, which has been widely used. 
This test seems to be fairly accurate up to ten years of age, or 
thereabouts. But it is very defective above that age. For this 
reason it is not well adapted for examining many of the inmates 
of reformatories, and tends to exaggerate the estimate of the 
number of mental defectives in reformatories. 

But the more reliable investigations cited resulted in much 
lower estimates. For example, in a highly selected group Healy 
found 10 per cent who were unquestionably feebleminded. In 
a group which was probably somewhat less selected Bronner 
found less than 10 per cent who were feebleminded. In a highly 
selected group Spaulding found 16.8 per cent who were feeble- 
minded. Two psychologists have devized a method of diagnos- 
ing feeblemindedness which they have applied to seven investi- 
gations of delinquents including 2,836 cases in all. They arrived 
at an estimate of 6.6 per cent feebleminded among these delin- 
quents, which estimate is professedly tentative. 3 

1 T. H. Haines, Mental Examination of Juvenile Delinquents, Publication 
No. 7, Ohio Board of Administration, Dec, 1915. 

2 C. S. Rossy, Report on the First Three Hundred Cases Examined at the 
Massachusetts State Prison, Mass. State Board of Insanity, Bulletin 17, 
Jan., 1016. 

3 R. Pintner and D. G. Paterson, A Psychological Basis for the Diagnosis 
of Feeble-Mindedness, in the Jour. Crim. Law, Vol. VII, No. 1, May, 1916, 
PP- 32-55- 



170 CRIMINOLOGY 

It is evident, therefore, that, while the high estimates are man- 
ifestly wrong, it is not yet possible to make any reliable estimate 
of the number of criminal aments. The number may range 
somewhere between 5 and 10 per cent, but this is not much 
more than a guess. In view of this great uncertainty it is ad- 
visable not to arrive at any definite scientific conclusions, nor 
to take any practical measures upon the basis of any of these 
estimates. 1 

However, the investigations so far made indicate, to say the 
least, that amentia is much more prevalent among criminals 
than it is among the population at large. In another work I 
have made a rough minimum estimate that 0.4 per cent of the 
population of this country are mentally defective. 2 If we assume 
that one-half of 1 per cent of the total population are aments, 
and that a minimum of 5 per cent of the criminals are aments, 
it is evident that there are at least ten times as many aments 
proportionally among the criminals than in the general popula- 
tion. This rough estimate is sufficient to indicate the signif- 
icance of mental defectiveness for criminality. 

Among other references dealing with the subject of the application of 
mental tests may be mentioned the following: G. M. Whipple, Manual of 
Mental and Physical Tests, Baltimore, 1914-1915, 2 vols.; J. E. W. Wallin, 
Experimental Studies of Mental Defectives, Baltimore, 191 2; E. B. Huey, 
Backward and Feeble-Minded Children, Baltimore, 1912. 

1 One investigator has stated the dangers of hasty conclusions and actions 
in the following words: "The present-day tendency to play fast and loose 
with such vague and undefined concepts as 'defective children,' 'mental 
deficiency,' 'mental defect,' 'defectiveness,' ' subnormality,' and 'feeble- 
mindedness,' 'moronity' and 'criminal imbecility,' when applied to men- 
talities of X (years of age) and over and to base vital practical action on 
diagnoses based on such vague concepts is not only inexcusable but it con- 
stitutes a positive bar to sane progress in the study of the problem of mental 
deviation. A recent writer recommends that adequate provision be pro- 
vided 'by the state for the permanent custodial care of all committed cases 
of mental defect, whether or not they have a court record.' Another recent 
writer maintains that 'there is little doubt that the majority of criminals 
are mentally defective.' It would be difficult indeed to find any person 
who is free from every kind of 'mental defect,' or who is not to some ex- 
tent 'mentally defective.' On the basis of the sweeping recommendation 
and generalization above it would be possible to report almost any person 
as a case of 'mental defect,' and thereby secure his life-long incarceration 
in a custodial institution." (J. E. W. Wallin, Who is Feeble-Minded 1 ?, in 
the Jour. Crim. Law, Vol. VI, No. 5, Jan., 1916, p. 715.) 

2 Poverty and Social Progress, p. 61. 



CHAPTER XII 
PSYCHOPATHIC CRIMINALS 

The borderline between amentia and normal mentality — The borderline 
between amentia and dementia and insanity — Demented and insane 
criminals — The influence of physiological crises — Influence of bad 
habits, the neuroses, traumatic injuries, abnormal suggestibility, men- 
tal conflicts, etc. — Summary of mental traits prevalent among crim- 
inals. 

The psychopathic type of criminal includes all of the crim- 
inals who display more or less mental abnormality, but who are 
not aments. 

The Borderline Between Amentia and Normal Mentality 

As I have already stated, there is no hard and fast line be- 
tween amentia and normal mentality. Consequently, there are 
some individuals on or near the borderline who cannot be clas- 
sified either as feebleminded or as mentally normal. Several 
groups may be distinguished among these individuals. 

For example, there are the persons who are feebleminded in 
most respects, but who have special ability along one line. To 
this group belongs the mental defective who has unusual musical 
or calculating ability. Sometimes a special ability aids the de- 
fective, and sometimes it is an obstacle to him and may lead 
him into crime. He may possess good insight into his own de- 
fects which helps him to avoid dangers. If he possesses gocd 
motor ability, it may help him in an industrial way. On the 
other hand, if his general mental defectiveness leads him into 
crime, his good motor ability may aid him in his criminal career, 
and thus become a drawback. He may possess unusual ability 
in the use of language which aids him in lying, swindling, fraud- 
ulent litigation, etc. 1 

1 Healy calls this the "verbalist" type of mental defective, and comments 
upon its significance as follows: "I know of no class of defective or abnormal 
individuals that is so little understood, or who can give so much social trou- 



172 CRIMINOLOGY 

Then there are the persons who are mentally normal in most 
respects, but are defective in one or a few special abilities. For 
example, an individual may be lacking in language ability which 
makes it difficult for him to speak well, prevents him from learn- 
ing to read and write, etc., and thus places a serious obstacle in 
the way of a successful career. Or his defect may be in arith- 
metical ability, motor ability, etc. Still more important for 
criminal conduct are defects in judgment, foresight, self control, 
etc. 1 

But most representative of the persons who cannot be clas- 
sified either as feebleminded or as mentally normal are the 
borderline cases of individuals who have neither special abilities 
nor special defects, but who are slightly subnormal in the whole 
of their mentality without being. decidedly feebleminded. These 
persons are hard to detect because they have no striking pecul- 
iarities. Many crimes are committed by such individuals who 
have succumbed to the pressure of unusually difficult circum- 
stances, but who might have resisted this pressure successfully 
if they had been fully normal mentally. It is probable that many 
of the occasional criminals are of slightly subnormal mentality, 2 
and the same may be true of some of the criminals by passion. 

Furthermore, mental dullness may arise from physical con- 
ditions other than subnormal neural development, or from lack 
of training, and may simulate congenital subnormality. When- 
ever physical conditions are present which can give rise to men- 
tal dullness, careful study should be made of any possible correla- 
tion between the two. There are many such physical conditions, 
among them being anemia; auto-intoxication; the physiological 
effects of narcotics, stimulants, and excessive sex indulgence; 
traumatic injuries to the brain and other parts of the nervous 
system; etc. 

ble on account of their not being understood, as the mental defectives who 
have language ability sufficient to make an appearance which deceives the 
world in general as to their true mental status. It is a type which on ac- 
count of the legal problems often centering about them should be understood 
thoroughly by all those who have to deal with human individuals under 
the law." (W. Healy, The Individual Delinquent, Boston, 1915, p. 473.) 

1 Cf. W. Healy, op. ciL, Bk. II, Chap. 17. 

2 Lombroso probably had this group in mind when he was describing the 
"criminaloid," which he makes a sub-class of the occasional criminal. (See 
his L'homme criminel, Vol. II.) 



psychopathic criminals 1 73 

The Borderline Between Amentia and Dementia and 

Insanity 

In addition to the borderline cases between amentia and 
normal mentality, there are the borderline cases between amentia 
on the one hand and dementia and insanity on the other hand. 
Various names have been given to this type of mental abnormal- 
ity, such as constitutional inferiority, psychopathic inferiority 
(psychopathische Minderwertigkeiten) , psychopathic constitution, 
psychopathic personality, degeneracy (degenerescence superieur), 
morbid personality, etc. 1 

Healy has described the traits of the constitutionally inferior with 
reference to crime in the following words: — "The general character- 
istic of the constitutional inferior is abnormal reaction to some of the 
ordinary stimuli of life. Unusual emotional reactions are almost 
universal in the members of this class. They are often egocentric, 
selfish, irritable, very suggestible, easily fatigued mentally. Some- 
times they are possessed by an abnormal feeling of impotence. They 
may be slightly defective in intelligence or have light, specialized de- 
fects of ability, but very often tests reveal neither defect nor peculiar- 
ity. Indeed some members of this class may be regarded as dis- 
tinctly bright, even geniuses, although weak in power to meet the 
steady demands of the world. Description of such anomalous per- 
sonages has often found its place in literature. Not the least feature 
of the symptomatology of this class of individuals is the ease with 
which they fall into anti-social conduct. The attraction towards mis- 
deeds is too much for their weak inhibitory powers in many a case, or 
their very feeling of social impotence leads to their taking the easiest 
path. The ranks of vagabondage, tramp life, as may well be imagined, 
are recruited in considerable part from this class." 2 

It is possible that in this group are to be found most frequently 
the individuals who display that singular rapprochement between 
genius and insanity which has been noted by many writers. At 
any rate, the instability of character of the members of this 
group easily leads them into crime. 3 

1 Cf. C. P. Obemdorf, Constitutional Abnormality, in the N. Y. State Hos- 
pitals Bulletin, Vol. II, No. 4, March, 1910, pp. 814-826. 

2 W. Healy, op. cit., pp. 576-577. 

3 Anderson has suggested a classification of borderline mental cases among 
criminals which is not entirely satisfactory. He distinguishes the following 
three types: (1) The mental defective, by which he seems to mean the sub- 



174 criminology 

Demented and Insane Criminals 

Let us now consider dementia and insanity briefly in relation 
to crime. As has already been noted in Chapter IX, dementia is 
due to neuronic degeneration, and gives rise to an insane mental 
state. Probably in most if not all cases a congenital neural 
weakness furnishes a diathesis for dementia. But whether a 
congenital factor is always present, or in some cases the de- 
mentia is wholly due to acquired traits, the dementia appears 
when the nervous system is subjected to an unusual strain, or is 
in a weakened condition. For example, the dementia may ap- 
pear at a time of crisis such as adolescence, when dementia 
precox makes its appearance, or at the time of the climacteric, 
when presenile dementia appears, or during old age, in the form 
of senile dementia. 

It is not possible to state with certainty whether or not in- 
sanity can exist without dementia. But it is very probable that 
a state of mental aberration sufficiently great to justify calling 
it insanity frequently exists without dementia being present. 
There are many kinds of insanity which may be classified in a 
variety of ways. For example, they may be classified with 
respect to their causes, such as infections, exhaustion, poisonings, 
auto-intoxication, glandular disturbances as in thyroid in- 
sanities, traumatic injuries, etc. Or they may be classified 
according to the forms they take, such as melancholia, mania, 
paranoia, circular psychoses, hysteria, neurasthenia, psychas- 
thenia, etc. 1 These two kinds of classification cut across each 

normal; (2) the psychopath, by which he seems to mean the constitutional 
inferior; and (3) the delinquent type of mentality, which is "cool and cal- 
culating, deliberate, planning out situations in advance, indolent and super- 
ficial, very selfish, egoistic, heartless and even cruel at times." The in- 
dividuals belonging to the third type are reformable and their criminality 
is due to the fact that they "have not had at the proper stage of their de- 
velopment those socializing influences which produce altruistic tendencies 
that discipline the instincts and emotions." It is difficult to understand 
why this type should be regarded as a borderline type, since its criminality 
is, apparently, entirely acquired and not at all innate. (V. V. Anderson, 
A Classification of Borderline Mental Cases amongst Offenders, in the Jour. 
Crim. Laiv, Vol. VI, No. 5, Jan., 1916, pp. 689-695. 

1 The literature on mental diseases is very extensive. I will mention a 
few works dealing with dementia, insanity, the neuroses, abnormal habits, 
etc.: 

J. S. Bolton, The Brain in Health and Disease, London, 1914. 



PSYCHOPATHIC CRIMINALS 1 75 

other at many points, and are complementary to each other, 
since it is impossible to study insanity fully without studying 
both the causes and the forms of insanity. But the forms of in- 
sanity are of more direct and immediate importance for the 
study of crime, and I shall now indicate briefly how some of 
these forms of insanity lead to criminal acts. 

Dementia causes a weakening of mental ability which in some 
cases leads to criminal conduct. Dementia precox unfits a young 
person for a useful career. He is incapable of holding a position, 
and is weak in the face of temptation. Consequently, he is 
likely to be led into a career of crime. Frequently he acquires 
bad sex habits, such as masturbation, and may drink and 
smoke excessively. In some cases suicide is attempted. Most 
of these things are true of the female as well as the male 
youthful dement, but the female is more likely to be led into 
a life of vice than the male, and is not so likely to become a 
criminal. 

Senile dementia sometimes leads aged persons, especially old 
men, into such offenses as petty stealing; but especially into sex 
offenses, such as exhibitionism and sometimes even rape. De- 
mentia at other periods of life may and sometimes does lead to 
crime and vice, but it probably has this effect most frequently 
in the young. However, even among the young criminals it 
does not appear frequently. Healy is sure that in not more than 
25 cases, and probably less than that number, of 1,000 young 
repeated offenders which he examined carefully were there any 
symptoms of dementia precox. * 

Paresis, a disease of the brain due usually if not always to 
syphilis, causes disturbances of the emotional life which may 
give rise to great irritability, and sometimes leads to delusions. 

A. Church and F. Peterson, Nervous and Mental Diseases, Philadelphia, 
1914. 

T. S. Clouston, Unsoundness cf Mind, London, 1911. 

R. H. Cole, Mental Diseases, London, 1913. 

P. Janet, The Major Symptoms of Hysteria, New York, 1907. 

E. Kraepelin, Lectures on Clinical Psychiatry, New York, 1913. 

R. von Krafft-Ebing, Text Book on Insanity, Philadelphia, 1905. 

A. Meyer, The Anatomical Facts and Clinical Varieties of Traumatic In- 
sanity, in the Am. Jour, of Insanity, Vol. LX, Jan., 1904, pp. 373-441. 

E. Tanzi, A Textbook of Mental Diseases, New York, 1909. 

1 W. Healy, op. cit., p. 594. 



I76 CRIMINOLOGY 

These mental conditions are very likely to result in minor 
offenses, and sometimes even in serious crimes. However, 
paresis results in great mental deterioration, and usually leads 
in course of time to dementia paralytica or general paralysis 
which destroys the capacity for conduct of any sort, criminal or 
otherwise. 

Extreme melancholia is a form of insanity caused and accom- 
panied by emotional depression and delusions and hallucina- 
tions. It frequently leads to attempts at suicide, and sometimes 
to murder of the members of the patient's family, setting fire 
to the home, etc. 

Manic-depressive insanity is the form of insanity which per- 
haps most frequently leads to criminality. Healy has described 
it and has indicated how it has this effect in the following words: 
— " Sufferers from the excessive psychomotor exhilaration, 
always sooner or later followed by abnormal depression, which 
characterizes the manic phase of manic-depressive insanity, 
are sometimes criminalistic. Usually their disease is so manifest 
that they are taken care of comparatively early in institutions, 
and consequently figure but little in the Courts. Quarreling, 
fighting, running away, unprovoked assault, and attempts to 
misrepresent, are the types of misdeed ordinarily seen in con- 
nection with this disease. Anti-social conduct is so readily 
seen to be a part of the mental disorder that diagnosis of the 
cause rarely presents difficulties." * 

Paranoia is a form of insanity consisting of systematized 
delusions which always center around the person of the patient. 
These delusions arise out of ideas of persecution or of grandeur. 
Apart from these delusions the mind of the patient may appear 
to be normal. Delusions of persecution are very likely to lead 
to retaliatory acts for the fancied persecution. These acts may 
be violent in their nature, or they may take the form of fault- 
finding, and of litigation. 2 Delusions of grandeur are not so 
likely to lead to criminal acts. Paranoia is a comparatively 
frequent cause of anti-social conduct, and is frequently con- 
cealed under the apparently good mental capacity of the para- 
noiac. 

1 W. Healy, op. cit., p. 602. 

2 Cf. B. Glueck, The For.cnsic Phase of Litigious Paranoia, in the Jour. 
Crim. Law, Vol. V, No. 3, Sept., 1914, pp. 371-386. 



psychopathic criminals 1 77 

The Influence of Physiological Crises 

In addition to the well marked psychoses which characterize 
the clearly defined insanities, there are other aberrational men- 
tal states which arise from physiological crises in the life of the 
individual, bad habits, neurotic states, traumatic injuries, etc., 
which may lead to aberrational conduct of a criminal nature. 
In these mental states the aberration is usually not so great as 
in the well defined psychoses, but in some cases it is quite as 
great. 

Adolescence causes important changes in the physiological 
and psychological traits of the individual, so that the adolescent 
period is a time of stress and change. Especially important is 
the maturing of the sexual nature at this time of life. Owing to 
these changes the adolescent is likely to be unusually irritable, 
and lacking in mental balance and self control. In some cases 
these conditions give rise to a slight, temporary mental aber- 
ration which does not develop into dementia, but which, while 
it lasts, may lead to aberrations of conduct of a criminal nature. 1 
Probably most of these individuals return to normal as they 
grow older. 

Certain crises in the life of woman in some cases lead to slight 
mental aberration, and in a few cases to great mental aberra- 
tion. These crises are menstruation (or, more strictly speaking, 
ovulation), pregnancy, and to a much smaller degree the meno- 
pause. During these crises a woman's self control is usually 
considerably lessened, and she is prone to experience sudden 
impulses which she is not always able to restrain. Frequently 
these are impulses to commit acts which are useless to her and 
irrational. For example, almost all of the shop-lifting in stores 
is done by women. A few of these women may be professional 

1 Healy comments upon these cases as follows: "As we have noted our 
cases we should say that the most characteristic symptom of those who 
showed temporary aberrational troubles in adolescence was that of extreme 
incalculability, general mental incoherence. The individual frequently 
seems to be so played upon by varying internal impulses and environmental 
influences that conduct becomes utterly irrational. It would be impossible 
to say that the behavior reactions fall at all within the broad lines of any 
typical psychosis. Any one of the new characteristics, or visionary schem- 
ing, or irregularity of temper, peculiar aversions, the general unsettled feel- 
ings, the recklessness, may be expressed with enough force to be reckoned a 
definite mental aberration." (W. Healy, op. cit., p. 652.) 



178 CRIMINOLOGY 

thieves. But in the cases of most of them the thieving seems to 
be due to pathological causes, for they frequently do not need 
what they steal, and sometimes steal things which are unusable. 
A considerable proportion of these women probably are psy- 
chopathic or insane, and are very likely to feel during these 
crises such impulses to steal. Some of them may be entirely 
normal, but the mental derangement caused by one of these 
crises may be sufficient to give rise to an uncontrollable impulse 
to steal. 1 

Influence of Bad Habits, the Neuroses, Traumatic In- 
juries, Abnormal Suggestibility, Mental Conflicts, etc. 

Certain bad habits give rise to aberrational mental states 
which lead to criminal conduct. The most important of these 
habits are alcoholism, and several drug habits. These habits 
lead to anti-social conduct in various ways, namely, by lessening 
the power of inhibition, by stimulating irresistible impulses, by 
giving rise to hallucinations and delusions, and in many other 
ways. 2 

The neuroses lead in various ways to criminal conduct. Epi- 
lepsy is characterized by outbreaks of ugly temper which readily 
give rise to anti-social acts of violence. Furthermore, this 

1 Cf. P. Dubuisson, Lcs volcuses des grands magasins, in the Arch, d'anth. 
crim., Vol. XVI, 1901, pp. 1-20, 341-370. 

Stekel gives a psychoanalytic explanation of these cases of shop-lifting. 
He says that "the root of all these cases of kleptomania is ungratified sexual 
instinct. These women fight against temptation. They are engaged in a 
constant struggle with their desires. They would like to do what is forbidden, 
but they lack the strength. Theft is to them a symbolic act. The essential 
point is that they do something that is forbidden, touch something that 
does not belong to them." Stekel also extends this psychoanalytic explana- 
tion of pathological stealing to other forms of kleptomania displayed by 
men, children, etc. (W. Stekel, The Sexual Root of Kleptomania, in the 
Jour. Crim. Law, Vol. II, No. 2, July, 191 1, pp. 239-246.) 

2 Cooper enumerates the principal psychophysical defects of alcoholic 
inebriates as follows: (1) Incapacity to bear physical or mental pain; (2) De- 
fective moral sense; (3) Defective sense of responsibility; (4) Abnormal 
intolerance or tolerance of alcohol; (5) Defective realization of his own ab- 
normalities on the part of the inebriate; (6) Defective inhibition; (7) Defec- 
tive mental equilibrium. It is evident that such defects may very readily 
lead to anti-social conduct. (J. W. Astley Cooper, Pathological Inebriety, 
New York, 1913.) See T. D. Crothers, Criminality from Alcoholism, in the 
Jour. Crim. Law, Vol. IV, No. 6, Mar., 19 14, pp. 859-866. 



PSYCHOPATHIC CRIMINALS 1 79 

neurosis is generally characterized by gradual mental deteriora- 
tion which is quite likely to lead to criminal conduct. Hysteria 
is very likely to lead to simulation, and not so much to action. 
Consequently, hysterics are more likely to threaten to do anti- 
social acts than they are to actually perform them. But they 
are sometimes guilty of minor offenses, such as false accusations, 
excessive lying, vagrancy, petty stealing, minor sex offenses, 
etc. Neurasthenia probably plays a part frequently in giving 
rise to vagrancy and mendicancy, but is not likely to lead to 
serious offenses. Psychasthenia may be a phase of neurasthenia, 
and probably does not lead frequently to crime. 

Cerebral injuries frequently cause great changes in character. 
They give rise to instability, forgetfulness, lack of control, feel- 
ings of lassitude, intolerance for alcohol, etc., which are traits 
which readily lead to criminal conduct. 1 

Abnormal suggestibility frequently plays a part in leading to 
criminal conduct. In some cases this develops upon a psy- 
choneurotic basis. But in many cases there is little if any 
pathological basis, and the suggestibility arises from a slight 
exaggeration or excessive stimulation of normal mental traits. 
This suggestibility manifests itself in various forms. There is 
the suggestibility of a crowd whose members under the pressure 
of the mob spirit will commit criminal acts which they would 
not think of committing at other times. 2 Then there is the re- 
sponse of individuals to suggestions received from newspapers, 
books, theaters, etc. This, however, strongly resembles the 
suggestibility of the crowd. 

The suggestibility which is of greatest criminological sig- 
nificance is that of individuals to each other. There are 
two principal forms of this type of suggestibility. The first 
is dual suggestibility in which two individuals stimulate each 
other in an approximately equal degree to commit acts which 
they would not think of doing, or would not dare to do, 

1 See A. Meyer, op. cit. 

2 There is an extensive literature upon the psychology of the crowd. See 
S. Sighele, La joule criminclle, Paris, iqoi; G. Tarde, Les crimes des Joules, 
in the Arch, d'anth. crhn., Vol. VII, 1892, pp. 353-386; P. Aubry, Be Pin- 
fluence contagieuse de la publicite des f aits criminels, in the Arch, d'anth. crim., 
Vol. VIII, 1893, pp. 565-580; C. Binet-Sangle, Le crime de suggestion re- 
ligieuse, in the Arch, d'anth. crim., Vol. XVI, 1901, pp. 453-473. 



l8o CRIMINOLOGY 

apart from each other. 1 The second is the response of a 
weaker personality to the influence of a stronger personality. 
In many cases the influence is sexual in its nature, in some cases 
it is due to a form of hero worship, but in other eases it is based 
upon an appeal to sordid motives. 

As normal mentality is approximated, we find certain mental 
states giving rise sometimes to criminal conduct. A somewhat 
accentuated love of excitement and adventure without any 
neuropathic basis may lead under favoring circumstances to 
truancy, vagrancy, mendicancy, gambling, petty stealing, etc. 
Mental conflicts and repressions in normal individuals may lead 
to pathological lying and accusation, 2 truancy, vagrancy, arson, 
sex offenses, etc. The most frequent cause of these conflicts and 
repressions is sex, 3 because of the great difficulty of satisfying the 
sexual desires and needs of the individual under the maladjusted 
conditions created by society. Other causes for these conflicts 
and repressions are uncertainty concerning parentage, deceit and 
lies on the part of persons presumably to be trusted, etc. The 
literature of psychoanalysis is now throwing a flood of light upon 
the vast influence of these conflicts and repressions in the life of 
mankind, especially with relation to the sexual nature of man. 
This knowledge is absolutely necessary in order to bring about 
the social readjustment which will prevent most of these con- 
flicts and repressions. 4 

There is not the space to describe other abnormal mental 
states which in some cases lead to criminal conduct. Among 
these are hypomania or a mild form of insanity, chorea or St. 
Vitus' dance, amnesic fugues or wanderings in a state of amnesia, 

1 See S. Sighele, Le crime a deux, Paris, 1910; E. Laurent, Lcs suggestions 
criminelles, in the Arch, d'anth. crim., Vol. V, 1890, pp.. 596-641. 

2 See W. Healy and Mary T. Healy, Pathological Lying, Accusation, and 
Swindling, Boston, 191 5. 

3 "A mental conflict presupposes, of course, some emotional disturbance 
or else there would be no opposition between different elements of mental 
content or activity. Since nothing, by the innermost nature of animate 
beings, so stirs emotion as the affairs of sex life, taking this term in its broad- 
est sense, it is to be presupposed that we should find most cases of mental 
conflict to be about hidden sex thoughts or imageries, and inner or environ- 
mental sex experiences." (W. Healy, The Individual Delinquent, p. 353.) 
This writer gives an excellent discussion of this subject in Chap. 10 of 
Book II of this work. 

4 See W. Healy, Mental Conflicts and Misconduct, Boston, 19 17. 



PSYCHOPATHIC CRIMINALS l8l 

various mental states which lead to irresistible impulses such as 
kleptomania, pyromania, homicidal mania, etc. 1 I shall sum- 
marize the preceding discussion by means of a brief descrip- 
tion of the mental traits prevalent among criminals. 

Mental Traits Prevalent among Criminals 

Lombroso and some of the other older criminologists collected 
a good many facts which they believed to prove that the criminal 
is notably lacking in physical sensibility, and is characterized by 
disvulnerability, or rapid recovery from wounds. These traits, 
they claimed, furnished the physical basis for the moral in- 
sensibility of the criminal, because physical insensibility would 
give rise to lack of sympathy for the sufferings of others. 2 But 
this theory has been severely criticized and gravely questioned 
by recent writers. 

In the first place, physical sensibility is a very delicate thing 
to measure, and it is highly probable that most of the facts 
which have so far been collected are not sufficiently accu- 
rate to be trustworthy. In the second place, morality is a 
complex phenomenon which is determined by all of the prin- 
cipal mental traits, so that a total absence of moral sense 
would not be likely to arise solely from the lack of sympathetic 
feelings which physical insensibility might occasion. In the 
third place, the recent study of mental defectives has furnished 
considerable evidence that aments are more or less lacking in 
physical sensibility, so that there is some reason for believing 

1 In addition to the works which have already been cited, I will mention 
the following general treatises on the psychology of the criminal and of 
crime: 

M. Benedikt, Anatomical Studies upon Brains of Criminals, New York, 
1881. 

K. Birnbaum, Die psychopathischen Verbrecher, Berlin, 1014. 

M. Kauffmann, Die Psychologie des Vcrbrechcns, Berlin, 191 2. 

P. Kovalevsky, La psychologie criminelle, Paris, 1903. 

A. Kraus, Die Psychologie des Verbrechens, Tubingen, 1884. 

R. Sommer, Kriminalpsychologie and Slrafrcchtliche Psycho pathologie auj 
naturwissenschaftlichcr Grundlage, Leipzig, 1904. 

E. Wulffen, Psychologie des Verbrechers, Berlin, 1908, 2 vols. 

2 For a brief summary of these facts upon the physical insensibility, dis- 
vulnerability, and moral insensibility of the criminal, see H. Ellis, The 
Criminal, London, 1903, pp. 123-150. 



1 82 CRIMINOLOGY 

that the physical insensibility found among criminals is char- 
acteristic of the criminal aments, but not necessarily of criminals 
in general. At any rate, the theory of physical insensibility 
resulting in moral insensibility as a universal or prevalent trait 
of criminals must be seriously questioned. 1 Where such moral 
insensibility does exist it is very likely to lead to cruelty. It 
also results in an incapacity for remorse. 

On the intellectual side, we have seen that some criminals are 
feebleminded, and therefore distinctly lacking in intelligence. 
The intellect of other criminals is weakened by their physical 
conditions, or by mental disease. Some of these criminals are, 
to be sure, characterized by a sort of cunning. But it is a cun- 
ning which quickly over-reaches itself, and which, therefore, 
cannot be given a high intellectual rating. A weak intelligence 
naturally leads to lack of forethought which is characteristic of 
many criminals, and plays a part in determining many other 
criminal traits, some of which I am about to mention. 

Laziness is characteristic of many criminals, and inordinate 
vanity has been noted in a good many criminals. These traits 
are probably due in part to intellectual defects, but perhaps more 
to emotional peculiarities. Emotional instability is an out- 
standing trait of many criminals. In its milder forms it may 
reveal itself as irritability, craving for excitement, etc. In its 
graver forms it reveals itself in irresistible impulses to commit 
anti-social acts. In all its forms it leads to lack of self control 
which is a wide-spread trait in the criminal world. 2 

1 For a discussion of the difficulties in the way of measuring physical sen- 
sibility, see Frances A. Kellor, Experimental Sociology, Delinquents, New 
York, 1901, pp. 52-55- 

For criticism of the above-mentioned theory, see E. Laurent, Le Criminel, 
Paris, 1908, pp. 27-30; W. Healy, The Individual Delinquent, p. 17. 

2 For graphic and concrete descriptions of the mental traits of criminals, 
see the following works: A. Marro, / caralteri dei delinquenti, Turin, 1887; 
A. Corre, Les criminels, Paris, 1889; H. Ellis, The Criminal, London, 1003; 
E. Laurent, Les habitues des prisons de Paris, Lyons, 1890; Le criminel, 
Paris, 1908. 

Laurent, who has had an extensive experience with criminals in Paris 
and elsewhere, gives a graphic picture of their mental traits in his recent 
book. {Le criminel, Chap. III.) This picture is in most respects accurate, 
at least for the habitual inmates of prisons. I have combined in one con- 
tinuous passage the following series of brief excerpts in which he describes 
the intelligence, imagination, feelings, passions, vanity, mythomania, 



PSYCHOPATHIC CRIMINALS 183 

The facts presented in this chapter and the two preceding 
chapters indicate the complexity of the mental causes of crim- 
inality. They show the impossibility of disentangling entirely 

simulation, courage, will, moral sense, remorse, religion, language, literature, 
art; and tattooing of criminals: 

"Les criminels sont-ils intelligents? En general, ils m'ont paru d'une 
intelligence au-dessous de la moyenne. Imprevoyants et legers, les criminels, 
moins que n'importe qui, ne sont gens de lendemain. Ils vivent au jour le 
jour, esperant que le hasard, qui leur donne aujourd'hui du pain ou un bon 
coup a faire, le leur ramenera le lendemain. Si l'intelligence des criminels 
est peu developpee, leurs facultes imaginatives le sont encore moins, et, chez 
un assez grand nombre, elles n'existent qu'a. un etat tout a. fait rudimentaire. 

"La sensibilite affective est considerablement emoussee chez les criminels. 
C'est la un fait hors de doute. Toutes les passions violentes et emanant de 
mauvais instincts remontent a la surface chez le criminal et le menent. 
C'est de lui qu'on peut dire avec juste raison qu'il est le jouet de ses passions. 
Et, de cette lutte de passions qui se disputent son ame, resulte une insta- 
bilite qui fait du criminel le plus versatile des hommes. II hait aujourd'hui 
qui il aimait tendrement hier, et l'ami d'aujourd'hui sera l'ennemi de de- 
main. Et la mere de tous ces vices, c'est la paresse; la paresse, mauvaise 
conseillere quand l'estomac a faim; la paresse qui engendre l'ivrognerie, la 
luxure et la debauche; la paresse qui paralyse le bras desormais incapable 
de travailler et l'arme du fer homicide afin de jouir sans peine. 

"La vanite joue un role considerable chez les individus normaux et a 
plus fort raison chez les criminels qui sont sou vent des anormaux. Cet 
appetit de la notoriete, ce besoin de fanfaronnade chez les criminels de- 
veloppe chez eux d'une facon presque morbide l'habitude du mensonge 
comme chez les enfants. Quand la simulation s'associe au mensonge, a la 
mythomanie, le criminel arrive a la fabulation fantastique, selon les expres- 
sions de A. Trannoy. (La mythomanie, Paris, 1906.) 

"J'ai connu bien peu de detenus courageux: quoi qu'on en ait dit et quoi 
qu'ils en disent, ils redoutent la souffrance, et la pensee seule de l'echafaud 
les fait palir. Aussi la volonte est, chez les criminels, une faculte rudimen- 
taire ou atrophiee par une sorte de paralysie psychique. 

"Si le criminel avait des remords, s'il avait une conscience, il ne serait pas 
criminel. II pourrait quelquefois commettre un crime accidentellement, 
mais jamais par habitude. Je crois, avec Lombroso et H. Joly, que chez 
certains peuples superstitieux, les criminels ne se debarrassent pas facilement 
des croyances qu'on leur a inculquees des leur enfance. lis se font sans 
doute des religions pleines d'accommodements et de misericordes; mais ils 
ont un sentiment religieux profond et inebranlable. 

"La plupart des criminels de Paris emaillent leur conversation d'un grande 
nombre demots empruntes a l'argot de tous les metiers et a. l'argot propre- 
ment dit; ils denaturent plus ou moins les terminaisons et les desinences des 
mots, mais le fond de la langue reste le meme, et il est facile de les com- 
prendre, sans meme etre initie. 

"Tout cela a fort peu de valeur au point de vue litteraire. Mais tous ces 



184 CRIMINOLOGY 

from each other the hereditary and acquired elements in these 
mental factors. They demonstrate the difficulty of classifying 
criminals in a brief and categorical fashion. 

At the same time we must remember that the criminals who 
have been discussed are those who are more or less abnormal and 
pathological in mind. As a matter of fact, there are many more 
persons who commit criminal acts who are normal or almost 
normal. In fact practically every member of society is destined 
at one time or another to commit criminal acts, but the great 
majority are not caught at it. 1 Most of those who are caught 

ecrits peuvent avoir un grand interet pour l'etude de l'ame des criminels, 
qu'on voit vaniteux, cyniques, et sans gout pour la litterature et la lecture, 
lisant et ecrivant uniquement par vanite ou par desoeuvrement, ne produi- 
sant que des compositions le plus souvent obscenes 011 bien pleines d'une 
emphase ridicule, tres rarement spirituelles, et presque toujours sans aucune 
elevation dans le style ni la pensee. 

"J'ai eu entre les mains un grand nombre de dessins de criminels. Eh 
bien! jamais, au grand jamais, je n'ai pu y saisir une pensee elevee, y sentir 
palpiter un sentiment noble. Comment, d'ailleurs, pourraient-ils exprimer 
ces emotions de lame qu'eux-memes ne ressentent pas? La premiere condi- 
tion pour communiquer une impression a d'autres, c'est de l'avoir ressentie 
soi-meme. Le criminel est le plus naturaliste des artistes. Je prends le mot 
artiste dans un sens tout a fait conventionnel. II rend la nature dans toute 
sa banalite. II copie plus ou moins adroitement ce qu'il voit; il n'imagine 
rien; il n'ajoute rien, ne supprime rien. Aussi toutes ses compositions se 
ressemblent; toutes sont d'une navrante banalite; il est impossible d'y 
trouver une idee, d'y puiser une emotion. 

"Le tatouage presente-t-il, chez les criminels, des caracteres particuliers? 
A. Baer repond par la negative, 'Le tatouage, dit-il, n'a aucun lien d'origine 
avec l'atavisme, et moins encore avec la criminalite, car il resulte, chez les 
criminels, uniquement des circonstances particulieres de leur vie et de leurs 
relations sociales.' Ce sont, en effet, a peu pres les conclusions qu'on pour- 
rait tirer de l'etude que je viens d'esquisser. 

"La conclusion qui decoule de cette etude anatomique et psychique des 
criminels! c'est qu'on peut rencontrer chez eux des series de caracteres plus 
ou moins constants, nullement absolus, variables suivant une foule de cir- 
constances. Au point de vue anatomique comme au point de vue psychique, 
il n'y a pas plus de type criminel que de type d'aliene. II y a de grandes 
varietes de criminels comme il y a de grandes varietes d'alienes. Quelques 
caracteres seulement sont assez communs et permettent de les classer tous 
dans une meme famille." 

1 Among these unconvicted persons is a genuine criminal group whose 
members never figure in criminal statistics. This group includes the more 
intelligent and skillful of the professional criminals, such as the expert 
forgers and counterfeiters, bank burglars, receivers of stolen goods, etc., 
many of whom are never caught. It should also include many persons, 



PSYCHOPATPIIC CRIMINALS 1 85 

belong to the occasional and professional classes of criminals, 
which include the vast majority of the total number of criminals. 

such as fraudulent borrowers and bankrupts, confidence men, etc., who 
succeed in avoiding overt violations of the letter of the law, but who are 
committing acts which are as anti-social in their character as the majority 
of crimes. 

Corre {op. cit., pp. 329-363) recognizes this group in the fourth class of 
his classification of criminals: 

1. Les faux criminels ou les criminels alienes. 

2. Les criminels accidentels (includes "les criminels passionels"). 

3. Les criminels d'etat ou de profession (includes "les criminels-nes et 
les criminels d'habitude de divers auteurs"). 

4. Les criminels latents ou les faux honnetes gens (outside of the prisons). 



CHAPTER XIII 
THE TYPES OF CRIMINALS 

Simple classifications of criminals — Lombroso's classification — Ferri's 
classification — Classifications derived from Lombroso and Ferri — 
Garofalo's classification — Criticism of classifications of criminals — 
A new classification of criminal types — Description of the principal 
criminal types — Distribution of criminals among the criminal types. 

According to some criminologists there are biological and 
anthropological types of criminals. In similar fashion it is 
believed by some criminologists that there are psychological 
criminal types, owing to important differences- in the mental 
traits of criminals. It is also believed that there are social and 
cultural types, owing to important differences in social status 
and cultural traits. 

There are several rubrics according to which criminals may 
be classified. For example, they may be classified with respect 
to sex. The important differences between the sexes inevitably 
give rise to somewhat different criminal traits. In similar fashion 
the important differences between the young and adults give 
rise to differences between juvenile and adult criminality. 

The present chapter is devoted to a discussion of the criminal 
types, with special reference to adult male criminals. A large 
part of what is stated in this chapter, however, applies to female 
and juvenile criminals as well, and a knowledge of it is essential 
to an understanding of female and juvenile criminality, which 
will be described in the two following chapters. 

Simple Classifications or Criminals 

The simplest classification of criminals is a twofold one. 1 
Ordinarily the purpose of such a classification is to distinguish 
between the criminals who commit few crimes and those who 
commit many crimes. But these twofold classifications differ 

1 A long list of authors who have suggested a twofold classification of 
criminals is given by E. Ferri, Criminal Sociology, Boston, 191 7, pp. 160$"., 



THE TYPES OF CRIMINALS 1 87 

amongst themselves in accordance with the theories of their 
authors as to the causes of criminality. Those who believe that 
there is a congenital criminal type divide criminals into (i) the 
born or instinctive criminals, and (2) the occasional criminals. 
Those who do not believe that there is a congenital criminal 
type, but that a criminal nature may be acquired by habit, 
divide criminals into (1) the habitual or professional criminals, 
and (2) the occasional criminals. It is obvious that a twofold 
classification is altogether too simple to indicate the various 
types of criminals. 

A threefold classification has been proposed by many writers. 1 
Ordinarily such a classification divides criminals into (1) the 
born or instinctive criminal, (2) the habitual criminal, and (3) the 
occasional criminal. This mode of classifying criminals solves 
the problem of the congenital criminal type mentioned above 
by recognizing both the congenital type and the habitual type. 
But it is out of the question to recognize an instinctive criminal, 
since there is no instinct of crime; while there are objections 
also to the use of the term "born criminal." There are also 
objections to the use of the term "habitual criminal," which I 
shall mention presently. Furthermore, a threefold classification 
of criminals, like a twofold classification, is not sufficiently 
complex to indicate the more distinct of the types of criminals. 
Some authors have endeavored to make the foregoing classifica- 
tion more adequate by adding to it the class of the insane crimi- 
nals, thus making it a fourfold classification. 2 

Lombroso's Classification 

Let us now turn to more systematic classifications of criminals. 
The development of the modern science of criminology has been 

1 For example, J. Arboux, Les prisons de Paris, Paris, 1881. Drahms, in 
his incoherent and unscientific book on the criminal, has suggested a similar 
classification. (A. Drahms, The Criminal, New York, 1900.) In his more 
lucid exposition and defense of Drahms' classification, Ellwood has unwit- 
tingly revealed still more clearly the absurdity of Drahms' theory. (C. A. 
Ellwood, The Classification of Criminals, in the Jour. Crim. Law, Vol. I, No. 4, 
November, 1910, pp. 536-548.) Drahms classified all types of criminals 
as instinctive criminals, habitual criminals, and single offenders. 

2 For example, A. Lacassagne, Marche de la criminalite, in the Revue 
scientifique, May 28, 1881; H. Maudsley, Remarks on Crime and Criminals, 
in the Jour, of Mental Science, July, 1888. 



1 88 CRIMINOLOGY 

stimulated principally by the so-called positive school of crim- 
inologists, which is sometimes called the Italian school. The 
founder and leader during his lifetime of this school was the 
famous Italian criminologist, Cesare Lombroso. Throughout his 
long life Lombroso was engaged in numerous firsthand studies 
of criminals. Most of these studies were devoted to the examina- 
tion and measurement of the anatomical and physiological 
traits of criminals. A few of them were devoted to psychological 
traits. As a result of these studies Lombroso formulated the 
following classification of criminals: — l 

i. Born criminal. 

2. Insane criminal. 

3 Criminal by passion . . 
a. Political criminal. 

4. Occasional criminal. 

a. Pseudo-criminal. 

b. Habitual criminal. 

c. Criminaloid. 

I have already summarized and briefly criticized Lombroso's 
theory of the born criminal in Chapter IX, so need not discuss 
it further at this point. 

Lombroso's conception of the insane criminal is similar to 
that of other criminologists. He describes how the various 
types of insanity give rise to criminal acts. For example, hom- 
icidal mania leads to murder, pyromania to incendiarism, klep- 
tomania to theft, etc. But some of these probably are cases of 
amentia rather than of insanity, and Lombroso failed to dis- 
tinguish clearly between the two. This is indicated by the fact 
that he asserts that he found the congenital criminal type very 
frequently in the group of criminals which he calls insane. 

The criminals by passion are characterized by a high degree 
of affectibility which, under the stress of unusual circumstances, 
gives rise to a passion which leads them to commit crimes of 
violence. A peculiar feature of Lombroso's theory of the crim- 
inal by passion is that the political criminal is a special kind of 
criminal by passion. 2 He became convinced that in most politi- 
cal criminals there is "an exaggerated sensibility, a veritable 

1 C. Lombroso, Uhomnte criminel, Paris, 1895, 2 vols. 

2 C. Lombroso and R. Laschi, Le crime politique el les revolutions, Paris, 
1802, 2 vols. 



THE TYPES OF CRIMINALS 1 89 

hyperesthesia, as in the ordinary criminals by passion; but a 
powerful intellect, a great altruism push them towards ends 
much higher than those of the latter." * This is an interesting 
and suggestive idea which I shall discuss in the last part of 
this book. 

The class of occasional criminals is very broad and rather 
diverse according to Lombroso. It includes three sub-classes. 
The first of these sub-classes is the group of the pseudo-criminals 
who commit crimes involuntarily, who are not perverse in their 
intentions, who commit acts which are not prejudicial to society 
but which are called crimes by the law, who commit crimes 
under extraordinary circumstances, such as for the defense of 
the person, of honor, or for the subsistence of a family. These 
pseudo-criminals are normal persons whose crimes are " rather 
juridical than real because they are created by imperfections of 
the law more than by those of men; they do not awaken any 
fear for the future, and they do not disturb the moral sense of 
the masses." 2 

The second sub-class of occasional criminals is made up of the 
habitual criminals, whom Lombroso characterizes as follows: — 
"The greatest number of these individuals is furnished by those 
who — normal from birth and without tendencies or a peculiar 
constitution for crime — not having found in the early education 
of parents, schools, etc., this force which provokes, or, better 
said, facilitates the passage from this physiological criminality — 
which we have seen belongs properly to early age — to a normal, 
honest life, fall continually into the primitive tendencies to- 
wards evil." 3 The habitual criminal is, therefore, a normal per- 
son who is led by the circumstances of his early life into a career 
of crime. 

The third sub-class of occasional criminals is made up of the 
criminaloids, whom Lombroso characterizes as follows : — " These 
are individuals who constitute the gradations between the born 
criminal and the honest man, or, better still, a variety of born 
criminal who has indeed a special organic tendency, but one 
which is less intense, who has therefore only a touch of degener- 
acy; that is why I will call them criminaloids. But it is natural 

1 Uhomme criminel, Vol. II, p. 217. 

2 Op. tit., Vol. II, p. 484. 

3 Op. tit., Vol. II, p. 534. 



190 CRIMINOLOGY 

that in them the importance of the occasion determining the 
crime should be decisive while it is not so for the born criminal 
for whom it is a circumstance with which he can dispense and 
with which he often does dispense, as, for example, in cases of 
brutal mischievousness." l The criminaloid is, therefore, a 
transitional type between the occasional and the born criminal. 

Lombroso includes many criminals in the class of occasional 
criminals, probably more than is advisable. Most criminologists 
recognize two or more distinct types among the criminals Lom- 
broso calls occasional. His use of the term "occasional" be- 
comes rather misleading because of the diversity of kinds of 
criminals to which it is applied. 

Ferri's Classification 

Another leader of the positive school of criminology has been 
and is the eminent Italian criminal sociologist, Enrico Ferri. 
His classification of criminals is as follows: — 2 . 

1. Insane criminal. 

2. Born criminal. 

3. Habitual criminal. 

4. Occasional criminal. 

5. Criminal by passion. 

Ferri's classification resembles in the main that of Lombroso, 
and I need only mention the differences. He recognizes the 
habitual criminal as a distinct type. According to Ferri, the 
individuals belonging to this type do not have, or have only to 
a slight degree, the peculiar traits of the born criminal. Their 
first crimes are caused less by congenital tendencies than by 
the force of circumstances and of corrupt surroundings. But 
when once a crime has been committed, usually at an early 
age and almost always against property, they persist, especially 
when encouraged by the impunity which often follows their 
first offenses, in criminal conduct, which becomes a habit and a 
veritable profession. "This comes from the fact that detention 
in common corrupts them morally and physically, confinement 
in cells stupefies them, alcoholism brutalizes them, and society, 
abandoning them after as before their liberation, to wretched- 
ness, idleness, and temptation, does not help them in their 

l Op. cit., Vol. II, p. 512. 

2 Criminal Sociology > Boston, 191 7, Part I, Chap. 3. 



THE TYPES OF CRIMINALS 191 

struggle to re-enter the conditions of honest life." * Precocity 
and recidivism are the principal traits of the habitual criminal. 
They are characteristic of the born criminal also, but owing to 
different causes. 

The occasional criminals, according to Ferri, are those who 
"have not received from nature an active tendency towards 
crime but have fallen into it, goaded by the temptation incident 
to their personal condition or physical and social environment 
and who do not repeat their offense if these temptations are 
removed." 2 But even in most of the occasional criminals there 
is some abnormality, though much less than in the born crimi- 
nals. Of the two conditions which, according to Ferri, psychic- 
ally determine crime — moral insensibility and lack of foresight 
— the second determines mainly the crime of occasion, while the 
first mainly determines habitual and congenital delinquency. 
The social sense, the lack of which causes moral insensibility, 
may be strong in the occasional criminal, but it is not seconded 
by a sufficiently keen prevision of the consequences of crime, 
and therefore yields to the external force. There are, however, 
those whom Lombroso has called "pseudo-criminals" who are 
entirely normal, and yet have committed crime involuntarily, 
or have done acts causing no social damage and displaying no 
perversity, but which nevertheless are criminal. 

The criminal by passion, or by transport of passion, is, ac- 
cording to Ferri, an occasional criminal, but with peculiar 
traits which distinguish him from other occasional criminals. 
The criminals by passion are "individuals whose lives have 
previously been blameless — men of a sanguine or nervous tem- 
perament with exaggerated sensibility, quite the reverse of the 
born and habitual criminals. They are sometimes of a tem- 
perament closely related to that of the insane or epileptic, of 
which their criminal rage may be only a disguised manifesta- 
tion. Most often (especially in the case of women) they com- 
mit the crime in their youth under the impulse of uncontrolled 
passion, like anger, jealousy, or shame." 3 

Ferri refuses to recognize the political offender as a criminal 
type. He asserts that the political offender is a "pseudo-crimi- 
nal" and not a true criminal. 4 This idea is bound up with his- 

1 Op. cit., p. 146. 2 0p. cit., p. 154 

3 Op. cit., p. 153. 4 Op. cit., p. 163. " 



192 CRIMINOLOGY 

theory of evolutive as contrasted with atavistic crime, which 
I shall discuss in Chapters XXVIII and XXIX on political 
and evolutive crime. 

Classifications Derived From Lombroso and Ferri 

Many criminologists have followed Lombroso and Ferri in 
their classifications of criminals, sometimes with slight mod- 
ifications. For example, 1 Ellis has proposed the following clas- 
sification: — (i) Political criminal, (2) Criminal by passion, 
(3) Insane criminal, (4) Instinctive criminal, (5) Occasional 
criminal, (6) Habitual criminal, (7) Professional criminal. The 
born criminal he calls instinctive, and explains this change of 
terminology in the following words: — "Lombroso and some 
other authorities prefer the term 'born criminal,' or 'congenital 
criminal' (reo-nato). The term 'instinctive criminal' seems to 
be safer, as it is not always possible to estimate" the congenital 
element." 2 This is an insufficient reason for such a change, 
since instinct is as congenital as any other hereditary trait. 
Furthermore, I have already demonstrated that there is no 
instinct of crime, and that therefore it is absurd to speak of an 
instinctive criminal. 

Ellis recognizes the professional criminal as a distinct type, 
whereas Lombroso and Ferri merge the professional in the 
habitual type. Ellis distinguishes between the two, and char- 
acterizes the professional type as follows: — "In the habitual 
criminal, who is usually unintelligent, the conservative forces 
of habit predominate; the professional criminal, who is usually 
intelligent, is guided by rational motives, and voluntarily takes 
the chances of his mode of life. . . . The professional criminal, 
though not of modern development, adapts himself to modern 
conditions. In intelligence, and in anthropological rank gen- 
erally, he represents the criminal aristocracy. He has delib- 
erately chosen a certain method of earning his living. It is a 
profession which requires great skill, and in which, though the 
risks are great, the prizes are equally great." 3 

Another classification of this kind is the following: — (1) In- 
sane criminal, (2) Born criminal, (3) Habitual criminal, (4) Pro- 

X H. Ellis, The Criminal, London, 1903, Chap. 1. 

2 Op. ciL, p. 17. 3 Op. cit., pp. 21-22. 



THE TYPES OF CRIMINALS 1 93 

fessional criminal, (5) Occasional criminal, (6) Criminal by 
passion or accident. 1 Still another classification which resembles 
the above classifications, but which is badly confused in certain 
respects, is the following: — (1) Chance criminal, (2) Criminal 
by passion, (3) Criminal by opportunity, (4) Deliberate criminal, 
(5) Recidivist, (6) Habitual criminal, (7) Professional criminal. 2 
In this classification it is difficult to distinguish between the 
deliberate criminal and the recidivist, between the recidivist and 
the habitual criminal, between the deliberate criminal and the 
professional criminal, etc. 

Garofalo's Classification 

Another leader of the positive school of criminology is the 
well known Italian criminologist and jurist, Raffaele Garofalo. 
While agreeing with Lombroso and Ferri in their positive, 
scientific point of view, he does not accept their classifications of 
criminals, and has devized, upon a psychological basis, the fol- 
lowing classification : — 3 

1. Typical criminals or murderers. 

2. Violent criminals. 

a. Endemic crimes. 

b. Crimes of passion. 

3. Criminals deficient in probity. 

4. Lascivious criminals. 

The typical criminal is, according to Garofalo, "a man in 
whom altruism is totally lacking." He is characterized by com- 
plete egoism, and an absence of any sentiment of benevolence or 
pity and of the sentiment of justice. " Hence the same criminal 
will be thief or murderer as occasion arises: he will take life to 
satisfy his greed for money, to gain an inheritance, to rid him- 
self of his wife that he may marry another, to put out of the 
way an incriminating witness, to avenge a fancied or insignificant 
wrong, or even to exhibit his physical dexterity, his sure eye, 
his firm hand, to display his contempt for the police or his hatred 
for men of another class." 4 The typical criminal may, there- 

1 P. A. Parsons, Responsibility for Crime, New York, 1909, Chap. 2. 

2 G. Aschaffenburg, Crime and Its Repression, Boston, 1913, pp. 198-213. 

3 R. Garofalo, Criminology, Boston, 1914, Part II, Chap. I. 

4 Op. cit., pp. 111-112. 



194 CRIMINOLOGY 

fore, be a thief instead of a murderer ("assassin"), and appar- 
ently corresponds to the born or instinctive criminal of other 
classifications. 

The violent criminal, who is rather vaguely described by 
Garofalo, represents a milder form of criminality than the typical 
criminal. Like the typical criminal, he lacks the sentiment of be- 
nevolence or pity. There are two sub-classes of violent criminals. 
The first includes " the authors of such crimes against the person 
as may be termed endemic, or in other words, such crimes as con- 
stitute the special criminality of a given locality. Modern exam- 
ples of this sort of criminality are found in the vendettas of the 
Neapolitan Camorrists or the political assassinations of the Rus- 
sian Nihilists." 1 The second sub-class includes those who com- 
mit crimes under the influence of passion. "This condition 'may 
be habitual and represent the temperament of the individual' 
(Benedikt), or else may be the result of external causes, such as 
alcoholic liquors, high temperature, or even circumstances of a 
really extraordinary nature which are calculated to arouse the 
anger of any person, although not to quite the same degree. In 
the last case the criminal may closely approach the normal 
man." 2 

The criminals deficient in probity commit crimes against 
property. "Here, unquestionably, social factors are much more 
influential than in the preceding classes. But this f act does not 
always prevent us from detecting in the criminal's organism an 
element which preexists any effect of environmental influence. 
The sentiment of probity is undoubtedly less instinctive than 
that of pity, or to state the matter more accurately, it is not 
so strictly dependent upon the organism. It is a sentiment of 
more modern acquisition, it represents a superposed, almost 
superficial, stratum of the moral sense, and consequently is less 
susceptible of hereditary transmission than the sentiment of 
pity. It lacks, moreover, that peculiarly congenital nature for 
which education can furnish no substitute. In a civilized society 
this sentiment of probity is generally the effect of examples in 
infancy which, continually renewed, have produced an ingrained 
instinct which in all probability will persist for life." 3 

The lascivious criminals (" cyniques") are those who commit 

1 Op. cit., p. 112. 2 Op. cit., pp. 115-116. 

3 Op. cit., pp. 125-126. 



THE TYPES OF CRIMINALS 1 95 

sexual crimes, and offenses against chastity. Garofalo recog- 
nizes that these crimes are due to several different causes: — • 
" In many cases the authors of such crimes must be assigned to 
the class of violent criminals. But where an extreme degree of 
lasciviousness is the sole motive of the offense, satyrs of this 
description are often found suffering from some form of aliena- 
tion." * But there is reason to believe that he has differentiated 
this type of criminals too hastily. When we consider the great 
variety of factors which play a part in giving rise to sexual 
crimes, such as various psychoses and neuroses, sadism, mas- 
ochism, satyriasis, nymphomania, sexual inversion, sexual 
fetishism, etc.; to say nothing of various factors external to the 
individual, such as undue repression of the normal sex instinct, 
alcohol, religion, etc.; it is evident that these crimes cannot be 
attributed to one type of criminals. 

Garofalo 's attempt to devize a psychological classification of 
criminals was commendable. But he fell far short of success. 
His classification is vague, it is not comprehensive, and it is not 
self-consistent. 

Criticism of Classifications of Criminals 

Let us now review briefly the classifications of criminals which 
have been stated. It must be evident by this time that all of 
them are unsatisfactory, for they all contain grave biological 
and psychological fallacies, no one of them is entirely self-consist- 
ent, and no one of them is sufficiently systematic and compre- 
hensive. I will comment upon each of the distinct types differ- 
entiated in these classifications. 

I have shown that there could be no born or instinctive crim- 
inal in the strict sense of those terms. It is biologically erro- 
neous to speak of a born criminal, for criminality is a social 
attribute acquired after birth, and therefore could not be con- 
genital. In similar fashion it is both biologically and psycholog- 
ically erroneous to speak of an instinctive criminal, for there is 
not and could not be an instinct of crime. At the same time, 
it is true that many inherited traits become powerful forces for 
crime in the lives of many criminals. Some of these traits are 
instincts which are unusually strong, or which are unusually 
1 Op. tit., p. 130. 



196 CRIMINOLOGY 

weak, or which take an abnormal direction. Others of these 
traits are abnormalities of the feelings and emotions, of the 
intellect, etc. So that hereditary factors play an important 
part in the causation of crime. It is, however, probable that 
there are several types of criminals in which hereditary factors 
play a predominant part. I have shown that hereditary factors 
play an important part in causing the criminal conduct not 
only of criminal aments, but also of psychopathic criminals. 

It is likewise psychologically erroneous in most if not all 
cases to speak of a habitual criminal. Habit exists only when 
through constant repetition a person acquires great facility in 
performing a particular action. By habitual criminal is ordi- 
narily meant a person who commits criminal acts frequently, 
but not owing to inherited traits as in the case of the so- 
called born criminal. This person is therefore said to have 
acquired the habit of crime. But in many cases the habitual 
criminal commits many different kinds of crime. At one time 
he may commit a crime against the person, such as assault; 
at another time he may commit a crime against property, such 
as burglary. It is evident that he must employ different actions 
in these two types of crime. And even if he always commits 
the same type of crime, as, for example, larceny, he will under 
different circumstances commit the crime in different ways. 

In fact, it is probable that it is an illegitimate use of the term 
to speak of a habitual criminal, except possibly in connection 
with highly specialized types of crime, such as pickpocketing 
in which the pickpocket may acquire great dexterity in slipping 
his fingers into the pockets of his victims. But even in these 
highly specialized crimes, different circumstances require dif- 
ferent methods in committing the same crime, so that there can 
be no invariable habitual method. 

The criminals ordinarily called habitual should in most cases 
be called professional criminals. The term professional is 
neither a biological nor a psychological term, but is a social 
and economic term. When applied to criminals it describes 
the persons who commit crimes repeatedly because they have 
been driven to do so by the force of circumstances in order to 
make a living, or have deliberately chosen a criminal career as 
the most profitable or the easiest mode of gaining a livelihood. 

The insane criminal doubtless exists in the sense that many 



THE TYPES OF CRIMINALS 197 

insane persons commit criminal acts, and that these acts are 
frequently due to their insanity. There are, however, many 
kinds of insanity. Consequently, there are several kinds of 
insane criminals. So that it would be a mistake to regard insane 
criminals as constituting but one type. 

There doubtless are criminals by passion, for some crimes 
are committed in a state of passion. There are, however, various 
kinds of passion, each of which arises out of an excessive ex- 
citation of one or another of the emotions, sometimes of several 
of them at the same time. For example, the state of passion 
may be due to anger, jealousy, offended self esteem, etc. Each 
of these is psychologically a distinct type, so that there are 
several types of criminals by passion. 

The term occasional criminal is a more or less accurate though 
rather vague name for a somewhat indefinite group of criminals. 
It may be applied to a large group of persons who commit 
crimes occasionally, but not frequently, owing mainly to the 
force of circumstances. 

A New Classification of Criminal Types 

It is not easy to classify the members of any large human 
group, owing to the great diversity of types in any such group. 
In classifying criminals this difficulty is due principally to the 
almost infinite degree of gradation between the different types. 
This extensive gradation is due, on the one hand, to the large 
amount of variation in the traits of individual criminals, and, 
on the other hand, to the great variety of circumstances under 
which crimes are committed. The occasional criminal merges, 
on the one hand, into the so-called born criminal, and, on the 
other hand, into the professional criminal. The criminal by 
passion sometimes approaches certain types of the insane crimi- 
nal. The criminal ament and the psychopathic criminal are 
closely related in some cases. There is danger, therefore, of 
making a classification which is so detailed that it will be helpful 
only to those who are able to make an intensive study. 

A classification of criminals should be based in the main upon 
the causation of criminality, for the principal use of such a 
classification is to aid in planning the treatment of criminals, 
and this treatment must be directed primarily at the causes of 



198 CRIMINOLOGY 

their criminality. In devizing a classification of criminals it is 
imperative to guard against several dangers. In the first place, 
no type should be included which does not actually exist, and 
which cannot be more or less successfully described. In the 
second place, no type which exists and is correctly described 
should be misnamed. In the third place, the classification 
should not be so simple as to omit any type which can be clearly 
distinguished. In the fourth place, the classification should 
not be so complex and lengthy that the types will not stand 
out distinctly. 

We have seen that the simple classifications of criminals are 
not sufficiently detailed, and that each of the more complicated 
classifications which have been formulated contains grave 
errors in the description of the various types of criminals. Fu- 
ture classifications of criminals will depend largely upon the 
progress of the science of psychology. They will also depend 
in part upon changes in the political and economic organization 
of society. They may also depend to a slight extent upon 
changes in human nature, but extensive changes in human 
nature are not likely to take place. 

Notwithstanding these difficulties, and on account of the 
great practical need for a classification of criminals, I shall 
propose the following classification of criminal types, formulated 
in accordance with the above-mentioned rules, and subject to 
modification by the advancement of science and human and 
social progress in general. 

A Classification of Criminal Types 

1. The criminal ament or feebleminded criminal. 

2. The psychopathic criminal. 

3. The professional criminal. 

4. The occasional criminal. 

a. The accidental criminal. 

b. The criminal by passion. 

5. The evolutive criminal. 

b. The political criminal. 

Description of the Principal Criminal Types 

After the extended discussion in the preceding chapters, a 
brief description of each of these types will be sufficient. We 



THE TYPES OF CRIMINALS 1 99 

have seen how amentia leads to criminality in some cases. We 
have also noted that two or more sub-types may be distinguished 
among the criminal aments. These feebleminded criminals 
take the place in our classification of the born and instinctive 
criminals of the older classifications. 

All criminals who commit their crimes under the influence of 
a distinct psychosis are included in the psychopathic class. 
Among these criminals are the insane criminals of the older 
classifications, but owing to the vagueness of the term insanity 
it is preferable to call them psychopathic criminals. As our 
discussion has shown, there are many kinds of psychoses, so that 
many sub-types may be differentiated in this class. Dementia, 
the neuroses, abnormal appetites, etc., give rise to these psy- 
choses. 

The third class includes not only all of the professional crimi- 
nals of other classifications, but also most if not all of the habit- 
ual criminals of many classifications. Many criminals have been 
called habitual criminals either because they are believed to have 
formed the habit of performing a certain kind or certain kinds of 
crime, or because their usual activities are criminal. 1 I have 
already criticized on psychological grounds the notion that a 
criminal can form a habit of committing certain kinds of crimes. 
There could be very few if any cases of this sort because of the 
great variety of circumstances under which crimes are committed, 
so that each set of circumstances requires a somewhat different 
manner of performing the crime. Furthermore, while the mode 
of life of the criminal may include various habits which are more 
or less peculiar to it, there is no more reason for calling it habitual 
than there is for calling the mode of life of the lawyer or doctor 
habitual rather than professional. On the whole, it is prefera- 
ble to designate as professional all criminals who are not feeble- 
minded or psychopathic, but who commit crimes repeatedly 
and who support themselves entirely or in part by means of their 
criminal conduct. 

1 "In police circles nothing is better recognized than the force of criminal- 
istic habit, because of its intensely practical bearings. The well-known 
return of the offender to the old scene, to the old type of misdeed, to renewal 
of life with former companions; the engaging in prior occupations, the suc- 
cumbing to temptations which previously won the day, are all evidences of 
deep-seated psychological laws." (W. Healy, The Individual Delinquent, 
P- 349-) 



200 CRIMINOLOGY 

It must, however, be recognized that there is a good deal of 
diversity within the class of professional criminals as I have 
defined it. They vary from the intelligent, expert professionals, 
who reap huge profits from their criminal career, to the repeated 
petty offenders, who eke out a precarious existence with their 
petty crimes, but are too stupid and weak by birth or as a result 
of their experience to commit more profitable crimes. 1 They 
vary from those who, though not feebleminded or psychopathic, 
possess abnormal or pathological mental traits which have led 
them into a criminal career, to those who are entirely normal, 
but have been led into crime by their training and circumstances 
in life. They vary from those who have deliberately chosen 
a criminal career, who are the only ones recognized by many 
criminologists as professionals, 2 to those who have drifted into 
it largely through the force of circumstances, and, consequently, 
with little or no choice on their own part. 3 

1 Sutherland distinguished between the "criminal recidivist" who com- 
mits major crimes and the "petty offender recidivist." He estimated that 
at the time he wrote there were in England 20,000 criminal recidivists and 
13,000 petty offender recidivists, and in Scotland 3,000 criminal recidivists 
and 1,700 petty offender recidivists. (J. F. Sutherland, Recidivism, Edin- 
burgh, 1908, p. 9.) 

2 See, for a statement of this point of view, W. Healy, op. ciL, Bk. II, 
Chap. 8. Healy says that "in general the criterion for discrimination of 
this professional class is that their criminalism is deliberate, premeditated 
and repeated, as compared to the type of action which is the result of the 
impulse of the moment." (P. 316.) 

3 The careers of a large number of professional criminals are described 
in T. Byrnes, Professional Criminals of America, New York, 1886. 

Tarde has proposed the singular theory that all criminals are professional 
criminals, and that the criminal type is a professional type, just as the mem- 
bers of the so-called liberal professions represent professional types. The 
preceding discussion has shown the fallacy of this theory. Many of the 
feebleminded and psychopathic criminals are incapable of being profes- 
sional criminals, while most if not all of the criminals by passion and the 
accidental criminals are not professionals. The class of occasional criminals 
is made up of individuals some of whom will become professional criminals, 
and others of whom will never become professionals. 

Tarde's theory, however, implies the relationship between criminal and 
non-criminal activities which I have pointed out several times. He de- 
scribes the manner in which professional criminal activities shade off into 
non-criminal and supposedly honest professional activities in the following 
words: 

"If the petty criminal industry which languishes in the depths of our 



THE TYPES OF CRIMINALS 201 

The class of occasional criminals also comprizes a consider- 
able variety of criminals. It includes all those who under the 
pressure of unusual circumstances, and sometimes also in part 
owing to slightly abnormal or pathological mental traits, commit 
only one or a very few crimes in the course of a lifetime. How- 
ever, it also includes some persons who will eventually become 
professional criminals. 

In this class I have also put the accidental criminals who are 
led to commit crimes under peculiar circumstances, and almost 
through no choice of their own. I have also included the crimi- 
nal by passion who is not feebleminded or psychopathic, but 
who may possess a somewhat excitable temperament. Such a 
person may commit a crime, usually a crime against the person, 
under the pressure of unusual circumstances and under the in- 
fluence of the passion aroused by those circumstances, whereas 
he could not be induced to commit a criminal act in any other 
way. 

The evolutive and political criminals constitute a special 
type of criminal which I shall describe in the last part of this 
book. 



towns, like so many little shops where a backward manufacture survives, 
does nothing but harm, the great criminal industry has had its days of great 
and fearful utility in the past, under its military and despotic form; and, 
under its financial form, people pretend that it renders appreciable services. 
Where would we be if there had never been any fortunate criminals, eager 
to overcome scruples, rights, prejudices, and customs in order to drive the 
human race from the pastoral poem to the drama of civilization? And 
must we not, unfortunately, recognize the fact that from the out and out 
criminal to the most honest merchant we pass through a series of transi- 
tions, that every tradesman who cheats his clients is a thief, that every 
grocer who adulterates his wine is a poisoner, and that, as a general thing, 
every man who misrepresents his merchandise is a forger? And I do not 
mention the great number of industries that exist more or less indirectly 
through the profits of crime, — low taverns, houses of prostitution, gambling 
houses, old-clothes shops, — which are just so many places of refuge for 
the receipt of stolen goods for delinquents. They have many other accom- 
plices. Among the upper classes, how much extortion, how many doubt- 
ful bargains, how much traffic in decorations, demand the complicity of 
people who are rich and are reputed to be honest, who profit by them, 
not always without their knowledge! If the tree of crime, with all its 
roots and its rootlets, could ever be uprooted from our society, it would 
leave a giant abyss." (G. Tarde, Penal Philosophy, Boston, 191 2, 
P- 255-) 



202 criminology 

Distribution of Criminals among the Criminal Types 

Having described the principal criminal types, it is interesting 
to consider how many criminals belong to each of these types. 
It will be necessary first to estimate the size of the criminal 
class as a whole. 

It is obviously impossible to count the total number of crim- 
inals, because many of them are never caught. Furthermore, 
criminal statistics available for making an estimate of the 
number of criminals are not so numerous nor so good as they 
would be if the proper governmental agencies kept adequate 
records of arrests, trials, convictions, penalties, population of 
penal institutions, etc. This is especially true in this country. 1 

It is necessary, in the first place, to decide whom we are to 
include in the criminal population. If we include all persons who 
have committed illegal acts, we shall have to stigmatize as crim- 
inal the vast majority of the total population, as I have al- 
ready pointed out. Or if we include all those who have been 
caught and convicted, we shall have to stigmatize as criminal 
many persons each of whom has .committed a single offense, 
usually petty in its character, but has pursued a law-abiding 
career during the remainder of his life. 2 It is obvious that neither 
of these methods is desirable. 

1 The inadequacy of these statistics is discussed by L. N. Robinson, His- 
tory and Organization of Criminal Statistics in the U. S., Boston, 191 1. 

2 The most careful estimate of this sort of which I know has been made 
by Finkelnburg in Germany. (K. Finkelnburg, Die Bestr often in Deutsch- 
land, Berlin, 191 2.) This writer calculated the number of persons who had 
been convicted of crime in the population of Germany on the basi? of the 
criminal statistics of the German Empire since 1882 and the census of the 
population of the German Empire in December, 19 10. After making all 
of the necessary deductions for death, emigration, foreign citizenship, etc., 
he concluded that out of every 11.7 persons 12 years of age or over, one 
person had been convicted of crime. (Pp. 32-33-) Furthermore, he cal- 
culated that out of every 212.7 g irls I2 y ears °f a S e or over U P to l8 >" ears 
of age, one girl had been convicted of crime; out of every 42.7 boys 12 years 
of age or over up to 18 years of age, one boy had been convicted of crime; 
out of every 24.6 women 18 years of age or over, one woman had been con- 
victed of crime; and out of every 6.2 men 18 years of age or over, one man 
had been convicted of crime. 

Goring has made a similar estimate for male offenders in England, but 
has gone still further and has included also those persons in the present 
population who will commit crimes in the future. He has estimated that 



THE TYPES OF CRIMINALS 203 

In the criminal population should be included only those who 
at the given time and place menace society with anti-social 
acts which the law has made illegal. In the first place, there 
should be included those who on account of grave abnormal 
and pathological traits have committed crimes and are likely 
to commit more of them in the future, namely, the feebleminded 
and psychopathic criminals. In the second place, there should 
be included all the professional criminals, whether abnormal or 
normal, and whether they have adopted a criminal career 
voluntarily or have drifted into it largely through force of cir- 
cumstances. In the third place, there should be included the 
accidental and occasional criminals and the criminals by pas- 
sion of the moment, that is to say, those who have committed 
crimes by accident, occasion, and passion within the very recent 
past, as, for example, during the past year. Those who have 
committed criminal acts in the more distant past, but are not 
likely to commit any more crimes, can hardly be said to menace 
society, and should therefore not be included in the criminal 
population. If they were included, this method could not be a 
true measure of the criminality of the community. 

The size of each of these groups must be determined, in the 
first place from the available statistics of criminals who are 
caught. Then if there are any data on the basis of which it is 
possible to make an estimate of the number of criminals who are 

the total population of male offenders, both prior and subsequent to convic- 
tion, in England and Wales, is 3,110,500; of whom the population prior to 
conviction (eventual offenders) is 1,115,490, and the population subsequent 
to conviction (manifest offenders) is 1,995,010. (C. Goring, The English 
Convict, London, 1913, p. 234.) 

Goring does not state the exact date at which his estimate held good. 
Presumably it was at about the time of publication of his report. Nor does 
he state the ratio between the criminal male population and the total male 
population. For these reasons it is impossible to make an accurate com- 
parison between the Finkelnburg and the Goring estimates. Finkelnburg 
calculated that there were 3,060,000 male offenders in the German Empire, 
of whom 90,000 were 12 years of age or over up to 18 years of age. 

It appears from these estimates that both in England and in Germany 
the actual offenders constituted something over 5 per cent of the total 
population. 

Both of the above estimates doubtless include many persons each of 
whom has committed but a single petty offense, and who, therefore, should 
not be regarded as belonging to the criminal class, according to our defini- 
tion of that term. 



204 CRIMINOLOGY 

undetected and uncaught, it may be advisable to add this es- 
timate to the above numbers. Such an estimate would at best 
be very rough in its nature. 

According to the U. S. Bureau of the Census, there were on 
January i, 1910, in the penal institutions (state prisons and 
penitentiaries, county jails and workhouses, municipal jails 
and workhouses, institutions for juvenile delinquents, etc.) 
of this country 136,472 inmates. Of these 124,424 were males, 
and 12,048 were females. Of the total number 24,974 were 
juvenile delinquents. During the year 1910 there were commit- 
ted to these penal institutions 493,934 persons; of whom 445,431 
were males, and 48,503 were females. During the same year 
468,277 persons were discharged or paroled from these insti- 
tutions; of whom 422,258 were males, and 46,019 were females. 1 
The ratio of commitments per 100,000 of population was 537.0; 
for males the ratio was 940.9, for females the ratio was 108.8. 

The above statistics seem to indicate that there were about 
six hundred thousand persons in the penal institutions of the 
United States during 1910. In other words, a little more than 
six-tenths of 1 per cent, of the total population may have been 
imprisoned during that year. But these figures give no indica- 
tion as to the number of recommitments during that year, so 
that it is impossible to estimate how many different individuals 
were inmates of these institutions during 19 10. They also do 
not indicate how many persons convicted during that year 
were not committed to these institutions, but were fined, re- 
leased on a suspended sentence or on probation, or were treated 
in some other way. Furthermore, they give no direct or definite 
indication of the distribution of the inmates of these institutions 
among the different classes of criminals. Consequently, the 
utility of these figures as indicating the aggregate number of 
criminals is very limited. 2 As to the number of criminals who 

1 Census Bulletin, 121, Prisoners and Juvenile Delinquents, 1910, Wash- 
ington, 1913. 

2 Notwithstanding the extreme inadequacy of these statistics, the follow- 
ing estimate of the number of criminals in this country has been based upon 
them: "The stronghold of crime in the United States is defended by a stand- 
ing army of not less than 400,000. The latest returns concerning this army 
are from the United States Census of 19 10, but we can rest assured that in 
the intervening five years it has not suffered any material loss. On the first 
day of January of that year there were 136,000 persons in custody in prisons, 



THE TYPES OF CRIMINALS 205 

were not detected or caught during that year, I know of no data 
at present available which would furnish a basis for even the 
roughest sort of estimate of the size of this group of criminals. 
But I will hazard the guess that less than one-half of the pro- 
fessional criminals are caught during any one year. 

We have seen from the statistics summarized in Chapter XI 
that the most careful studies of groups of criminals, which neces- 
sarily are selected, do not reveal more than from 10 to 20 
per cent of aments. Consequently, probably not more than from 
5 to 10 per cent of the total number of criminals are feeble- 
minded. The same investigations do not seem to reveal more 
than 10 per cent who possess well marked psychoses, and who 
are therefore distinctly insane. However, insanity is more 
easily recognized than amentia, so that there are many insane 
persons who commit criminal acts who on account of their in- 
sanity are not prosecuted and convicted as criminals. At any 
rate, these investigations seem to indicate that in all probabil- 
ity there are not over 20 per cent and perhaps considerably 
less than that percentage of the total number of criminals who 
are sufficiently abnormal or pathological in mind to be classified 
either as feebleminded or as insane. There are, of course, many 
in addition who are suffering from minor mental deficiencies. 

Inasmuch as there are very few evolutive and political crimi- 
nals, practically all of the remaining 80 per cent of criminals 
must be divided between the professional and occasional crimi- 
nals. This sub-class of criminals by passion doubtless is very 
small, and the sub-class of accidental criminals probably is com- 
paratively small. So that there can be little question that the 
great majority of criminals belong either to the professional 

reformatories, jails and workhouses. During that year there were 493,000 
commitments to the same institutions, but included in these were an un- 
known number of recommitments of the same persons. If we allow a little 
more than one-third of the total number for possible recommitments (and 
this is a liberal allowance) and add the remaining 314,000 to the number 
in the institutions on the first day of the year we shall have 450,000 indi- 
viduals confined in these institutions during the year. But I want to be 
still more conservative and from these I deduct the odd fifty thousand. 
Moreover I shall not consider the large number of criminals at large and 
not on record during the year." (J. P. Byers, Prison Reform, in the Jour. 
Crim. Law, Vol. VI, No. 6, March, 1916, p. S75.) 

I hardly need to comment that it is well to beware of all such estimates. 



206 • CRIMINOLOGY 

class; or to the main group of occasional criminals who commit 
crimes only occasionally, but some of whom will eventually 
become professional criminals. It is impossible to determine 
the proportion between these two classes of criminals, but in 
all probability the occasional class is considerably larger than 
the professional class, 



CHAPTER XIV 
JUVENILE CRIMINALITY 

Differences between childhood and adulthood — Extent and character of 
juvenile crimes — Poverty and juvenile criminality — Parentage and 
home life: broken homes; illegitimacy — Education and crime: intel- 
lectual education; moral education; vocational training; illiteracy and 
criminality — Recreation and crime — Immigration and crime — 
Effect of imprisonment upon young criminals. 

There are two important classifications of criminals which 
we have not yet discussed, namely, the classifications according 
to age and according to sex. In the present chapter I shall 
recognize the distinction in age by describing the criminal 
traits peculiar to the young. 

The criminal traits of the young are of interest and importance 
not only for their own sake, but also on account of the light 
their study throws upon the corresponding traits of adults. 
Many criminal careers begin in childhood or early youth. And 
even when a criminal career begins after maturity has been 
reached, the experiences and influences of early youth are 
frequently of great significance for explaining the later crimi- 
nality. Consequently, the study of juvenile criminality is in 
large part a contribution to the study of adult criminality as 
well. 

Differences between Childhood and Adulthood 

In distinguishing between the two age groups it is possible 
to err either by going to the extreme of exaggerating their differ- 
ences, or by going to the opposite extreme of minimizing unduly 
these differences. Lombroso was led into the first error because 
he was obsessed with a mistaken theory of atavism. 1 According 
to him the child represents an earlier stage in the evolution of 
the human species, so that in the child are to be found in a 
normal fashion traits, such as anger, vengeance, jealousy, lying, 

1 C. Lombroso, Vhomme crlminel, Paris, 1895, Vol. I, Part I, Chap. 3. 



2o8 CRIMINOLOGY 

cruelty, laziness, vanity, lack of foresight, etc., which when man- 
ifested to the same degree of intensity by an adult are regarded 
as immoral and criminal. Consequently, he stigmatizes the 
morality of the normal child as being analogous to that of the 
moral imbecile and born criminal. 

It is true that the recapitulation theory makes this notion 
seem plausible. According to this theory the individual or- 
ganism in its ontogenetic development recapitulates to a certain 
extent the phylogenetic evolution of the species. If this recapit- 
ulation were to continue during the postnatal period of develop- 
ment, the child might be regarded as representing in a measure 
a lower type. But in all probability this recapitulation, so far 
as it takes place, is entirely uterine, and ends before the close 
of the prenatal period. Consequently, the individual has fully 
attained the human level at the time of birth, and the differences 
between children and adults do not correspond to the differ- 
ences between the human type and prehuman types. Only in 
exceptional cases can the individual exhibit prehuman traits 
due to atavism or arrested development, which he will, however, 
carry throughout life. 

It is, therefore, erroneous to assume that the child is passing 
through the fish or reptile or lower mammalian stages of mental 
and moral development. The physical, mental, and moral differ- 
ences between the child and the adult are due to the fact that 
they are at different stages in the ontogenetic development. 
The child is still in the throes of this process while the adult is 
in the main through with it. Consequently, several traits are 
peculiar to childhood and early youth which may be stated 
briefly as follows. 

In the first place, the child is subjected to the strain of growth 
which uses up much of his energy. In the second place, the 
sexual instincts and feelings are almost entirely lacking during 
childhood. In the third place, at the time of puberty comes 
a crisis due to the great changes caused by the awakening of 
the sexual nature, and throughout the period of adolescence, 
while the sexual nature is coming to full maturity, there is much 
instability of mind and character. In the fourth place, the child 
begins his life after birth in total ignorance, owing to lack of 
experience and education, and without any moral training, and 
acquires knowledge and moral character to the extent that his 



JUVENILE CRIMINALITY 200. 

congenital traits and the environment permit of such acquisi- 
tion. 1 

Owing to the physical strain of growth, puberty, and adoles- 
cence, even the healthy young person may temporarily be in a 
somewhat abnormal and pathological state, which in some 
cases may lead to criminal conduct, but will later pass on to a 
normal and healthy adulthood. If, however, the child has 
inherited any congenital weakness, he is much more likely to 
develop abnormal and pathological traits which may remain 
with him throughout life. These traits of childhood and early 
youth, therefore, may or may not prove to be traits of adult- 
hood as well. In other cases criminal conduct on the part of 
children may be due solely to ignorance and lack of suitable 
guidance. 

We can now see clearly that, while juvenile criminality differs 
from adult criminality in some of its features, juvenile and adult 
criminality are similar with respect to many traits, probably in 
most respects. In fact, the juvenile criminal is frequently the 
prototype of the adult criminal. Consequently, most of the 
facts which have been presented in the preceding chapters 
with regard to the criminal in general apply to the young as 
much as to adults. 

Extent and Character of Juvenile Crimes 

Before going further with this study of juvenile criminality, 
it will be well to present some statistics concerning the extent 

1 Duprat compares the child and especially the adolescent with the adult 
in the following terms: 

"L'enfant a moins de vigueur et d'experience; il est plus emotif et moins 
passionne; l'adulte a plus de force, de perseverance, d'experience, de puis- 
sance de reflexion et d'inhibition; l'adolescence est l'age de la volonte encore 
faible, des sophismes de la passion, des croyances ardentes, des negations 
audacieuses, des enthousiasmes passagers et des repulsions promptes a se 
manifester, de l'amitie et de l'amour souvent sans lendemain, de l'emulation, 
de la jalousie, de la vanite, de l'oscillation entre le travail regulier et la 
paresse,la continence et la debauche, de Vapprcntissage sous toutes ses formes, 
de la preparation decisive a la vie honnete ou a 1'activite immorale. C'est 
le moment critique par excellence, tant au point de vue du devenir phys- 
iologique qu'au point de vue de revolution mentale et morale, de 1 'acquisi- 
tion d'aptitudes a la vie sociale." (G. L. Duprat, La criminalile dans Vado- 
lescence, Paris, 1909, pp. 19-20.) 



2IO 



CRIMINOLOGY 



and character of juvenile crimes. All of the difficulties involved 
in the study of criminal statistics in general exist to an even 
greater degree in the study of the statistics of juvenile crimes. 
Young children are usually not prosecuted at all for criminal 
acts. Older children also are frequently not prosecuted, or 
when prosecuted their cases are frequently disposed of in such 
a fashion that they are not recorded in criminal statistics. So 
that the statistical record of juvenile criminality is exceedingly 
inadequate. 

The following table from the U. S. Census statistics gives 
some indication of the age distribution of criminals in this 
country: 

Age Distribution of Offenders Committed to Prison in the United 
States in 1910 

Commitments in igio 

Ratio per 100,000 

Age Population Number ' of population 

All ages 91,973,266 493,934 537 •© 

Under 10 years 20,391,996 568 2.8 

10 to 14 years 9,107,140 9,061 99-5 

10 years 1,868,533 710 38.0 

11 years 1,705,081 1,016 , 59.6 

12 years 1,912,061 1,764 9 2 -3 

13 years 1,773,343 2,402 135 . 5 

14 years 1,848,122 3,169 171. 5 

15 to 17 years 5,372,176 15, 793 294.0 

15 years 1,721,225 3,778 219 . 5 

16 years 1,864,711 4,914 263.5 

17 years 1,786,240 7,101 397-5 

18 to 20 years 5,546,049 35> 6 97 643 . 6 

18 years 1,928,366 11,033 57 2 -i 

19 years 1,763,061 12,362 701.2 

20 years 1,854,622 12,302 663.2 

21 to 24 years I 7,202,362 64,221 891 . 7 

25 to 34 years 15,152,188 129,974 857.8 

35 to 44 years ..11,657,687 99,° 2 3 849.4 

45 to 54 years 8,369,988 56,230 671 .8 

55 to 64 years 5,054,101 22,408 443 .4 

65 years and over 3,949,524 7,718 195-4 

Age not reported 169,055 53, 241 

This table indicates that the criminality rises rapidly until 
the age period of 21 to 24 years, remains high until about 45 
years of age, and then falls rapidly. But it must be remembered 



JUVENILE CRIMINALITY 211 

that this table includes only the offenders who were sent to 
prison, and omits those who were fined, or put on probation, 
or whose sentences were suspended. Consequently, it probably 
exaggerates adult criminality in proportion to juvenile crimi- 
nality. 

The following table gives some indication of the distribution 
of criminals in age groups in Germany: — 1 

Convictions in Germany 1886-1895 per 100,000 Civilians of the Same 
Age and Sex 

(For crimes and offenses against national laws except evasion of 
military service) 

Male convicts 1847.03 Female convicts 380.42 

12 to 18 years 1032.72 12 to 18 years 229.56 

18 " 21 " 3-9 I -°4 18 " 21 " 443-59 

21-25 " 3327-2S 21 " 25 " 443-58 

25 ' " 30 " 2928.12 25 " 30 " 482.41 

30 "40 " •• 2259.13 30 " 40 " 522.65 

40 " 50 " 1651.22 40 " 50 " 489.40 

jo " 60 " 1068.39 50 "60 " 3 J 4-74 

60 " 70 " 571-75 60 " 70 " I53-03 

70 years and over 227 . 25 70 years and over 58 . 25 

According to the above table criminality among the males 
increases rapidly and is at its highest point relatively in the 
age group from 21 to 25 years of age. It falls off rapidly after 
the age of 25. Among the females the criminality is at its high- 
est point relatively in the age group from 30 to 40 years of age. 
It does not increase as rapidly as male criminality, and de- 
creases more slowly. Female criminality is shifted along further 
On the age scale than maje criminality. This table is of great 
significance because it seems to indicate that the highest crimi- 
nality is reached just after adulthood is attained. 

Criminal statistics reveal some of the peculiarities of juvenile 
crimes, which will in turn aid us in depicting the traits of ju- 
venile criminals. I shall, therefore, cite some tables which 
classify the crimes committed by juvenile criminals and indicate 
their relative frequency. 

1 Statistik des Dentschen Reichs, Neue Folge, LXXXIII, II, pp. 26 and 27. 



212 



CRIMINOLOGY 



Distribution of Commitments to Prison According to Age and Offense 
in the United States in iqio 1 

Total Per cent of total 

(excluding Under 18-24 25-34 35*44 45S4 55-64 

Selected offense age not re- 18 yrs. yrs. yrs. yrs. yrs. yrs. 
ported) 

All offenses 440,693 5.8 22.7 29.5 22.5 



65 

yrs. 
and 



Adultery 1.066 

Assault 20,623 

Burglary 8,673 

Carrying concealed 

weapons 369 

Contempt 849 

Delinquency 2,053 

Disorderly conduct .. . 85,527 

Drunkenness 148,300 

Embezzlement 923 

Forgery 2,091 

Fornication 3,017 

Fraud 8,225 

Gambling 5,471 

Homicide (grave) 942 

Homicide (lesser) 1 ,887 

Incorrigibility 3,068 

Injuries to common 

carriers 1,140 

Keeping house of ill 

fame 971 

Larceny 39,569 

Malicious mischief.. . . 1,609 

Non-support 2,727 

Obscenity 1,777 

Profanity 1,122 

Prostitution 2,812 

Rape 1,438 

Robbery 1,677 

Trespassing 7,263 

Truancy 1,555 

Vagrancy 45,112 

Violating city 

ordinances 4,724 

Violating liquor laws. . 6,396 

* Less than one-tenth of 1 per 



2.1 
3.5 
18.0 

3.6 
1.3 

95.1 
3.5 
0.3 
4.3 
6.7 

14.3 
6.2 
4.7 
3.0 
5.0 

95.4 

11.8 



1 
15. 
12. 

0. 

3. 

5. 

4. 

9. 

8.1 

8.6 
99.8 

3.8 

4.3 
0.7 
cent. 



27.8 
31.6 
42.5 

39.8 
19.1 

4.8 
26.5 

9.8 
25.6 
35.9 
30.5 
44.9 
40.9 
31.2 
32.0 

4.5 

44.3 

18.4 
34.8 
31.3 
13.9 
22.9 
29.4 
40.7 
32.0 
45.8 
44.8 
0.2 
23.4 

27.8 
17.4 



39.9 
36.2 
24.3 

36.0 
30.7 
0.1 
31.6 
28.1 
36.7 
32.7 
31.4 
28.6 
36.8 
36.4 
35.5 



25.5 

37.9 
27.5 
27.2 
36.0 
32.4 
31.4 
36.0 
26.4 
33.5 
28.4 

29ll 

30.8 
34.8 



23.2 
17.9 
10.1 

14.6 

26.7 

21.8 
30.8 
21.5 
14.8 
15.4 
12.4 
13.1 
18.9 
16.4 



13.2 

26.7 
13.7 
17.7 
32.5 
22.1 
20.3 
14.8 
16.8 
10.3 
11.7 

2T2" 

20.8 
25.4 



12.8 

5.1 

7.7 
3.8 

4.6 
16.7 

ii'.i 

20.0 
8.5 
7.4 
6.3 
5.3 
3.4 
7.1 
7.3 



3.8 

11.1 
6.0 
7.3 
13.9 
12.3 
8.4 
3.4 
8.3 
2.0 
4.7 

i's'.i 

10.5 
14.1 



5.1 

1.9 

2.4 
0.9 

1.1 

4.1 

4!i 
8.2 
2.6 
1.9 
1.8 
2.0 
0.9 
2.7 
3.1 



1.4 

4.0 
2.1 
3.0 
3.3 
5.5 
4.0 
0.4 
5.1 
0.4 
1.5 

6.1 

4.4 
5.4 



0.2 
0.7 
0.3 

0.3 
1.3 

1.5 
2.8 
0.9 
0.7 
0.3 
0.6 
0.2 
0.7 
0.8 



0.8 
0.6 
1.0 
0.2 
1.4 
1.1 

1.9 
0.1 
0.3 

2^8 

1.5 
2.2 



Age Distribution of Convictions for Various Crimes in Germany 2 

Per 100,000 Civilians from 
Convicted in iqoi of 12 to 14 14 to 18 

Years Years 

All crimes and offenses 405 . 2 

Petit larceny . „ 230 . 4 

Grand larceny 47-8 

Receiving stolen goods 14.7 

Fraud 9.7 

Simple assault and battery 3.7 

Aggravated assault and battery 24 . 9 



30.2 
2.6 

3-5 

2. 1 



919 

329 

65^ 

19, 

41 

25. 

167. 

57 ■ 
29 
21. 



Malicious mischief 

Insult 

Indecent assault on children, etc 

Arson 2.1 2.6 

1 U. S. Census Statistics. 

2 Statislik des Deutschen Reichs, Neue Folge, CXLVI, II, p. 50. 



18 Years 

and Over 

1 361. 7 

208 

28 

19 

70 

79 

274 

48 

165.5 

12.6 

0.9 



JUVENILE CRIMINALITY 213 

Italy, 1891-1895 l 

Crimes To 100,000 of Each Age Group 

q to 14 14 to 18 18 to 21 

Simple theft 59-5° 278.89 302.86 

Minor assaults 14 . 64 83 . 40 215 . 04 

Aggravated theft 30 . 95 1 28 . 96 157 . 28 

Rebellion 1.25 24 . 94 83 . 58 

Serious assaults 5.22 28 . 56 82 . 07 

Threats i.n 15.10 47. 71 

Obtaining moneyunder false pretenses,etc. 1 . 54 13 . 96 30 . 00 

Homicide 0.49 3-97 1578 

Rape 1.02 6.36 9.62 

Extortion, blackmail 0.41 3-55 9 • 07 

Offenses against chastity of minors and 

against public decency 0.38 2 . 93 5 . 70 

Offenses against public order 1.01 2.14 4-95 

Assassination 0.07 0.75 3.55 

Infanticide o . 01 0.02 0.36 

England, 1 893-1 899 2 

Crimes N timber of Persons under 21 

to the 100 Convictions 

Simple theft 44 95 

Theft by domestics 41 . 80 

House-breaking 38 . 91 

Theft upon the person 28 . 93 

Malicious mischief 24 . 80 

Extortion 23 . 92 

Crimes against morals 23 . 32 

Crimes committed with violence 23 . 23 

Forgery 14 . 93 

Obtaining money by false pretenses 13 .46 

Counterfeiting 13 . 53 

Assaults 13 . 21 

Austria, 1882-1880 3 

Crimes Persons from 14 to 20 Years of 

Age to the 100 Convicted 

Rape, etc 32.2 

Aggravated theft 25.0 

Extortion 24 . 2 

Counterfeiting 17.6 

Infanticide 17.4 

Assassination 14.5 

1 Notizie complementari alle sialistiche giudiziaric penali degli anni i8qo- 
i8q5, p. xlvii. 

2 Judicial Statistics, England and Wales, Part I, Criminal Statistics, 1899, 
p. 65. 

3 Cited in W. Bonger, Criminality and Economic Conditions, Boston, 1916, 
P- 4i3- 



214 CRIMINOLOGY 

Austria, 1882-1889 — Continued 
Crimes Persons from 14 to 20 Years of 

Age to the 100 Convicted 

Serious assaults 14.3 

Defamation 13.0 

Homicide 12.6 

Fraud 10.9 

Lese-majeste 7.0 

The above tables give further evidence of the astonishing 
precocity of criminals. The German statistics indicate that the 
relative number of criminals from 14 to 18 years of age is more 
than two-thirds as great as the relative number of those who 
are 18 years and over. It must be remembered, however, that 
the latter group includes all of the middle-aged and aged popula- 
tion whose criminality is very low. According to the Italian 
statistics for certain kinds of offenses the relative criminality 
in the age group from 14 to 18 years of age is about five times as 
great as in the age group from 9 to 14 years, while the relative 
criminality in the age group from 18 to 21 years of age is nearly 
twice as great as in the age group from 14 to 18 years. According 
to the English statistics from a fourth to nearly one-half of the 
convictions for several important kinds of crime are of persons 
under 21 years of age. According to the Austrian statistics 
from a fourth to about one-third of the convictions for several 
crimes are of persons from 14 to 20 years of age. 

Certain crimes .stand out prominently in these statistics of 
youthful criminality. Among these are petit larceny, grand 
larceny, burglary, and various other kinds of thieving; receiving 
stolen goods; malicious mischief, etc. Most of these are crimes 
which children and adolescents are frequently tempted to com- 
mit, and they have not as much power, on the average, to resist 
this temptation as adults. On the other hand, on account of 
their ignorance and lack of opportunity they are not so likely 
to commit crimes requiring knowledge and skill, such "as forgery, 
fraud, etc. 

It may appear singular that sexual crimes attain so great a 
prominence among the adolescents and older youths. But 
this is doubtless due to the fact that they have not yet ac- 
quired much control over the newly awakened sexual impulses, 
and also to the fact that they have not as many opportunities 
for the gratification of these impulses as adults have in marriage 



JUVENILE CRIMINALITY 215 

and otherwise. Furthermore, it goes without saying with re- 
spect to these crimes as with respect to all kinds of crime that 
the young have not as much knowledge and experience as adults 
to aid them in avoiding detection- In criminal statistics, how- 
ever, this may be more than compensated for by the fact al- 
ready mentioned that compassion for youth frequently leads to 
failure to prosecute youthful criminals. It must also be re- 
membered that the young have not been subjected as much 
as the adults to a biological selective process which will weed 
out many of the aments, dements, and insane, and to a social 
selective process which will incarcerate many of the more dan- 
gerous permanently or for long periods of time in asylums and 
penal institutions. 

The above facts indicate that we need no new classification 
for the types of young criminals. The classification which I 
have formulated in the preceding chapter will serve the purpose, 
with certain qualifications. The criminal ament is found among 
the young as among adults, though in a good many cases the 
amentia does not make itself apparent until later than child- 
hood. The psychopathic criminal is found among the young, 
but probably not so frequently as among adults, inasmuch as 
many forms of insanity do not develop until later in life. The 
percentage of professional criminals is, of course, low among 
the very young criminals, who have not yet had enough time 
and experience to become professionals. But the percentage of 
occasionals is high, many of whom are on their way to become 
professionals. 

There are many accidental criminals among the young, 
but not many criminals by passion, since most of the seri- 
ous acts of passion which constitute crimes are committed 
later in life when the powerful emotions of anger, jealousy, 
envy, etc., have attained their full scope and receive greater 
stimuli to arouse them. Evolutive and political criminals are, 
of course, non-existent among children, and are comparatively 
rare among adolescents, but a considerable proportion of this 
group of criminals is to be found in early adulthood. 

In Germany for all crimes and offenses against national laws 
there were convicted per 100,000 minors of the civil population 
568 minors in 1882 and 764 in 1906. * According to Aschaffen- 
1 Statistik des Deutschen Reichs, Neue Folge, CXLVI, I, 104. 



2l6 CRIMINOLOGY 

burg there were convicted per 100,000 of population 1,097 adults 
and 564 minors between the years 1882 and 1886, and 1,321 
adults and 736 minors between the years 1902 and 1906. 1 The 
increase, therefore, among adults was 20.4 per cent and among 
minors was 30.5 per cent. 2 In Austria the number of young 
persons from 11 to 20 years of age convicted of crimes (exclu- 
sive of the "contraventions" or less serious offenses) increased 
from 1 88 1 to 1899 from 5,865 to 7,680, or from 17.5 out of every 
1,000 convicted to 22.8 out of every 1,000 convicted. 3 In Belgium 
the percentage of accused persons under 21 years of age in- 
creased from 14.1 in 1861 to 20.8 in 1885. 4 In Italy the number 
of persons from 9 to 21 years of age who were convicted in- 
creased from 30,108 in 1890 to 39,109 in 1895, or from 22.96 
per cent of the total number convicted in 1890 to 23.28 per 
cent in 1895. 5 This was an increase of about 30 per cent in 6 
years which was much greater than the percentage of increase 
of the total population. But the period of years covered is too 
brief to be of great significance. 

As to the extent of juvenile crime in France 6 and in England, 7 
there is great uncertainty whether the available statistics indi- 
cate an increase or a decrease in these countries. There is still 
greater uncertainty as to the extent of juvenile crime in this 
country. 8 

1 G. Aschaffenburg, Crime and Its Repression, Boston, 1913, p. 148. He 
does not state whether these figures are per 100,000 of total population or of 
adults and of minors. 

2 See W. Bonger, op. cit., pp. 409-410. Bonger asserts that since 1906, 
juvenile criminality has decreased in Germany, and intimates that the de- 
crease is due to the " Fiirsorgeerziehung " legislation. 

3 W. Bonger, op. cit., p. 412. 

4 W. Bonger, op. cit., p. 413. 

5 Notizie complementari die statistiche giudiziarie penali degli anni i8go- 
18Q5, p. xli. 

6 See, for example, G. L. Duprat, op. cit., pp. 41-47; W. Bonger, op. cit., 
pp. 414-416. 

7 See, for example, W. D. Morrison, Juvenile Offenders, New York, 1897; 
W. Bonger, op. cit., p. 411. 

8 Prisoners and Juvenile Delinquents, igio, Washington, 1913, Census 
Bui. 121. According to this bulletin there were in the institutions for juve- 
nile delinquents in this country on the first of January, 1910, 24,974 in- 
mates, of whom 19,062 were males and 5,912 were females. During the 
year 1910 there were committed to these institutions 14,147 persons, of 
whom 11,971 were males and 2,176 were females. But these figures give 



JUVENILE CRIMINALITY 21 7 

There is a widespread belief, which has been expressed by 
many writers on this subject, that juvenile crime has been in- 
creasing rapidly during the last few decades in most civilized 
countries, more rapidly even than crime in general. The above 
figures suggest that this opinion may be correct, though they 
do not furnish conclusive evidence of its correctness. 

It should also be noted that since the beginning of the world 
war in 19 14 juvenile crime has probably increased consider- 
ably. 1 This is to be expected in every belligerent country for 
several reasons. Inasmuch as many fathers and big brothers 
have gone to war, the boys lack control. The increased demand 
for labor enables them to earn money readily, and they are 
likely to get into trouble while spending it. Furthermore, the 
police suppression of crime may become somewhat weakened 
during war time. 

Poverty and Juvenile Criminality 

We shall now survey briefly the causes of juvenile criminality, 
especially the environmental factors. These factors have been 
described in earlier chapters with respect to criminality in gen- 
eral, and practically all that has been said applies to the young 
as well as to adults. The economic factors are perhaps the most 
powerful, and it is easy to discern the effect of these factors upon, 
juvenile criminality. 

Poverty frequently means that the child does not get enough 
food, or does not get the right kinds of food. This may lead to 
a stunting of the physical development, and is sure to weaken 
the resistance against disease and to strengthen predispositions 
to various physical and mental abnormalities. Poverty usually 
means a lack of adequate facilities for mental education, and 
may also mean a comparatively small amount of moral training. 

Poverty usually leads to, or, to say the least, is accompanied 
by, a congestion of population in large cities. This means that 
the homes of the poor are crowded to such a degree as to be 
physically unhealthful, and mentally and morally degrading. 

very slight indication of the total number of juvenile criminals in this coun- 
try. It is impossible to compare these figures directly with those in the 
special report for the year 1904, because the classification was changed. 

1 Reports to this effect have come from England and Germany. (See the 
London Times, November 8, 1916; New York Times, July 7, 1917.) 



2l8 CRIMINOLOGY 

On account of the congestion, also, there is lack of space and of 
other facilities for recreation, so that the children of the poor 
are forced out upon the street to play. Thus they have unusual 
opportunities to observe crime and are in danger of acquiring 
habits of drinking, gambling, and other forms of vice. In some 
cases they fall under the influence of criminals who need the 
assistance of young accomplices, and who wish to train them to 
be professional criminals who will work under their direction. 
So that the children of the poor are placed under greater pres- 
sure, on the whole, to become criminals, prostitutes, gamblers, 
drunkards, etc., than are the children of the rich. 

Among the poor both parents are frequently forced to work in 
order to earn enough to support the family. In such families 
the children are left without parental care, and frequently with- 
out any other kind of care for much of the time. Without ad- 
equate restraint and guidance these children are likely to run 
wild, and very soon to get into mischief. 

Furthermore, the children of the poor frequently are forced to 
go to work very young in order to help support the family. 
Since the industrial revolution of the eighteenth and nineteenth 
centuries there has been an enormous amount of child labor 
which has not yet been prevented by legislation. 1 It is difficult 
to secure statistical evidence of the influence of this child labor 
upon crime. 2 But the consensus of opinion among the students 
of the subject seems to be that child labor is a prolific cause of 
crime. This is not, of course, because labor in itself causes crim- 
inal conduct. But labor for young children is very likely to 
stunt their growth and do them other physical injury. It is 
almost certain to interfere with their education, and thus to 
impede their mental development. In some occupations it is 
very likely to bring them under immoral and sometimes crim- 
inal influences, as, for example, in the work of newsboys, ped- 
dlers, bootblacks, messengers, etc. 3 

1 1 have summarized the statistics of child labor in the United States in 
my Poverty and Social Progress, New York, 1916, pp. 138-139. 

2 For numerous statistics on this subject see the Report on Condition of 
Woman and Child Wage-Earners in the U. S., Vol. VIII, "Juvenile Delin- 
quency and Its Relation to Employment," Washington, 191 1. (Senate docu- 
ment 645, 61st Cong., 2d Sess.) See also Vol. VII of this report on "Condi- 
tions under which Children Leave School to Go to Work," Washington, 1910. 

3 "The paid labor of the young has a bad influence in several ways. First, 



juvenile criminality 219 

Parentage and Home Life 

Many of the immediate causes of juvenile criminality can 
be found in the parentage' and home life of the children and 
adolescents. 1 Most of these causes can in turn be traced back 
to the economic and other factors which we have described. 
Many parents, especially among the poor, are ignorant, and are 
therefore incapable of giving their offspring wise guidance and 
training during their youth. Their children are likely to go 
astray on account of the ignorance of their parents. A smaller 
number of parents are immoral and vicious. These parents fur- 
nish a bad example for their children, and in a few cases delib- 
erately teach their children to be vicious and criminal. Some 
avaricious parents force their children to work even when there 
is no need for their earnings. As has already been noted, when 
both parents are forced to work, the children lose many of the 
benefits of parental care. When the children themselves are 
forced to work, they lose many of the benefits of home life. 

Many families are broken up in part or entirely by widowhood, 
desertion, divorce, etc. 2 Divorce probably does not have much 
effect upon crime, because the economic well-being of the children 
is not injured usually, by the divorce. While these children lose 
the benefits of bi-parental rearing, they are frequently benefited 
by no longer being forced to witness the infelicities arising out of 
the ill-mated unions of their parents. 

But widowhood and desertion are very likely to lead to crim- 
inality on the part of the children in the families thus affected. 
This is not so likely to happen where the male parent is widowed 

it forces them, while they are still very young, to think only of their own 
interests; then, brought into contact with persons who are rough and indif- 
ferent to their well-being, they follow these only too quickly, because of 
their imitative tendencies, in their bad habits, grossness of speech, etc. 
Finally, the paid labor of the young makes them more or less independent 
at an age where they have the greatest need of guidance." (W. Bonger, 
op. cit., p. 407.) 

1 For graphic descriptions of these domestic causes of juvenile criminality, 
see, Sophonisba P. Breckinridge and Edith Abbott, The Delinquent Child 
and the Home, New York, 191 2; L. Albanel, Le crime dans la famille, Paris, 
1900. See also certain chapters in C. E. B. Russell and L. M. Rigby, The 
Making of the Criminal, London, 1906; G. L. Duprat, op. cit. 

2 For statistics on this subject see my Poverty and Social Progress, Chap. 
XV, entitled " Domestic and Matrimonial Maladjustment." 



220 CRIMINOLOGY 

or deserted, because ordinarily he is able to continue supporting 
his children, who lose only the maternal care. But when the 
female parent is widowed or deserted, her position is usually 
much more precarious. Frequently she is forced to go out to 
work, thus leaving her children without parental care. But 
even then she is usually not able to support herself and her 
children fully, so that the family becomes dependent at least in 
part, and may be broken up entirely. 

The most complete breaking up of the family and of the home 
life comes when both parents are lost and the children are left 
orphans. Then if they are not taken into the private homes 
of relatives or others, or into institutions, they are in great 
danger of embarking upon careers of vagrancy, prostitution, and 
crime. 

Another factor in juvenile criminality which should be men- 
tioned in this connection is illegitimacy. It has long been noted 
that there is a disproportionately high number of persons of 
illegitimate birth in prisons and reformatories and among pros- 
titutes. 1 This is probably due in part to the fact that mentally 
; defective persons, and especially feebleminded girls and women, 
are much more likely to have illegitimate children than the 
mentally normal. Consequently, there is a much higher per- 
centage of mental defectiveness among the illegitimate than 
among the general population. But it is also due to the facts that 
a bastard almost invariably has the care of only the maternal 
parent, and frequently not even her care; is brought up in dire 
poverty; and lives under a grave social disability which greatly 
hampers him in his career. 

Education and Crime 

• 
It goes without saying that one of the most important factors 
in the rearing of a child is his education. This is to be acquired 
partly in the home; but more particularly in the school, which is 
the special agency of education. The purpose of education is to 
prepare the child for his life and career. The first requisite in 
any efficient system of education is that the child be taught the 
nature of the world in which he lives, in order that he may be 

1 For statistics on this subject, see my Poverty and Social Progress, pp. 210- 
213; and G. Aschaffenburg, op. cit., pp. 129-131. 



JUVENILE CRIMINALITY 221 

able to orient himself therein. This means that he must be 
given at least a minimum amount of information from the 
sciences of physics, chemistry, astronomy, and geology to 
enable him to understand the nature of the physical environ- 
ment in which he lives, and the natural laws which govern 
therein. He must be taught enough biology and psychology to 
grasp the significance of the evolutionary process, and to under- 
stand in a measure his own nature and that of his fellows. He 
must be taught something of social evolution, and given a fairly 
clear understanding of social organization, in order that he may 
comprehend the nature of the society in which he lives. If the 
system of education is given a sound scientific foundation, the 
individual is not likely to be misled by animistic explanations of 
natural phenomena, or to be induced to use magical and other 
superstitious methods with the purpose of influencing natural 
processes. 

An education of this nature is intellectual in its character, 
and it may be thought by some that it can have no moral in- 
fluence. But it is easy to show that this education has also the 
highest moral value. I have already had occasion to state 
several times that immorality, viciousness, and criminality 
frequently are due to failure on the part of the individual to 
adjust himself to his surroundings, and this failure is frequently 
due to ignorance as to the nature of these surroundings. With 
an education such as is outlined above this ignorance would 
not exist, except in the cases of those who are too feebleminded 
to acquire it, and this important cause of moral maladjustment 
would disappear. It may not be apparent at first sight how this 
would result from the study of the inorganic sciences. But it is 
evident that it would be a direct result of the study of the psy- 
chological and social sciences. These sciences furnish an in- 
sight into human nature and the nature of society, and thus 
reveal the nature of and the justification for moral ideas and 
laws, in other words, the means of social control. Furthermore, 
the study of these sciences, because of their subject-matter, 
arouses sympathetic emotions which are not aroused to the 
same extent by the inorganic sciences, and thus an additional 
dynamic force is given to the effects from their study. 

Indeed, when all things are taken into consideration, it be- 
comes evident that so-called "moral" education must be in the 



222 CRIMINOLOGY 

main intellectual in its character. 1 Inasmuch as civilization 
has reached the scientific stage in its progress, moral ideas can 
no longer be based upon metaphysical speculations or theolog- 
ical dogmas, but only upon inductive knowledge. In the pres- 
ent age genuine morality can arise only upon the basis of a 
comprehension of natural phenomena such as can be acquired 
only through the educational system outlined above, and phys- 
ical living conditions which permit of the development of per- 
sonality and of a fair degree of freedom of choice and initiative. 
In addition to the general education outlined above is needed 
training for life work, namely, vocational education. Under 
present conditions the great majority of young persons drift 
more or less aimlessly into occupations for which they have not 
been specially trained, and for which they are not necessarily 
well fitted. Thus the chances of failure are greatly increased, 
and many of them eventually become unemployed, and some of 
them become vagrants and are in great danger of becoming 
criminals. I have already shown how important a factor in 
the causation of criminality is lack of economic success. Con- 

1 De Lanessan expresses the opinion that intellectual training has much 
greater moral efficacy than so-called "moral" training, among other rea- 
sons because it develops in the child the love for work which is in itself a 
powerful safeguard against immorality, viciousness, and criminality: 

"Les enfants auxquels les professeurs ou les instituteurs parviennent a 
inculquer le gout du travail echapperont presque tous aux dangers de con- 
tagion auxquels ils sont exposes, lis y echapperont presque a. coup stir, si 
leur famille leur a deja inculque ce gout pendant le premier age. Aussi, 
les educateurs doivent-ils se donner pour but, non d'apprendre beaucoup 
de choses a. leurs eleves, ma is de leur inspirer l'amour de la science, afin 
qu'ils en arrivent a. aimer le travail. Et c'est pourquoi je preconise les 
sciences d'observation et d'experience comme base fondamentale de l'en- 
seignement primaire, aussi bien que de 1'enseignement secondaire ou su- 
perieur. Par elles, l'enfant acquiert sans peine le gout du travail, parce 
qu'il est essentiellement curieux et qu'il est pousse par le besoin d'activite, 
des le premier age, a, exercer tous ses sens." (J. L. de Lanessan, La hitte 
contre le crime, Paris, 1910, p. 100.) 

"S'il m'etait possible de condenser en quelque breve formule ces con- 
siderations, je dirais volontiers que le plus sur moyen de faire des honnetes 
gens, c'est d'inspirer aux enfants, des leur premier age, l'amour du travail. 
L'homme le plus laborieux pourra, il est vrai, en raison de son egotsme riat- 
urel et des passions qui en naissent et sous l'influence de quelque excita- 
tion exterieure, devenir un criminel d'occasion, mais il ne deviendra jamais, 
quelle que soit son heredite physiologique, un professionel du crime." {Op. 
cit.y p. 101.) 



JUVENILE CRIMINALITY 223 

sequently, there should be adequate facilities for vocational 
training for every youthful person in society. But in addition 
to this system of vocational training there must be a place in 
the economic system for every new worker, for no amount of 
such training can be of any value if the student cannot use it 
ultimately in productive labor. So that with the improvement 
of the educational system should come a reorganization of the 
economic system which will eliminate unemployment, and will 
make possible the utilization of all of the available labor supply 
of society. 

If we consider the existing educational facilities, it is obvious 
how inadequate and ineffective these facilities are. We have 
already noted the defects and inadequacies of the homes of the 
poor as educational forces. But the homes of the middle and 
upper classes frequently are little better. In how many of these 
homes are the children trained to take their places in the larger 
society to which they are eventually to belong ? On the contrary, 
on account of the narrow outlook of the majority of their parents, 
especially of the mothers, these homes are all too frequently 
schools of malicious gossip, scandalmongering, backbiting, and 
other petty vices which in their aggregate cause an enormous 
amount of unhappiness and social maladjustment, and some- 
times lead to criminal conduct. The only kind of preparation 
for the larger social life which is given in many of these homes 
is the conventional training in formal courtesy, which consists 
largely of puerile and banal rules with regard to non-essentials 
which aid little or not at all in promoting social harmony. 1 

1 See, for example, Edith B. Ordway, The Etiquette of To-Day, New York, 
1913. This recent treatise on etiquette contains a few true but trite aph- 
orisms which belong to genuine courtesy, but consists mainly of the puerili- 
ties and banalities of formal courtesy. From the numerous examples of the 
latter I have gleaned a few of the instructions issued by this writer to her 
naive and ingenuous readers. 

For etiquette at the table the reader is informed that "it is not permis- 
sible to eat peas with a spoon," and that "lettuce, cress, and chicory are 
never cut with a knife, but rolled up on the fork and so conveyed to the 
mouth." For behavior in public the readers, male and female, are instructed 
as follows: "Upon the street a gentleman always takes the outside of the 
walk, when with a lady, the custom having come down from the days when 
dangers beset the path, and the man had to be at the point of vantage 
for the protection of the woman. When a married woman and an unmarried 
girl are walking together, the married woman takes the outside of the walk." 



224 CRIMINOLOGY 

The training in genuine courtesy which is essential as a prepara- 
tion for kindly and harmonious social relations is in the main 
lacking. 

Little can be done by means of direct measures to raise the 
moral tone of the vast majority of homes. This can come only 
indirectly through an improvement in the economic conditions 
of the great mass of the people, and by rendering the educational 
system more efficient. But much can be done directly to im- 
prove the schools, because most of the schools in civilized coun- 
tries are now under the direction of the state, and an enlightened 
government can raise very rapidly the intellectual and moral 
standards in these schools. 

It is a well-known fact that at present most schools are very 
inefficient, many of them being almost as ineffective as the 
homes. These schools are inefficient because they fail to teach 
their pupils the nature of the world in which they live, because 
they do not train them for their careers, because they do not 
develop in them a love for suitable labor, and because they fail 
to interest them in their studies. These failures are due to the 
nature of many of the subjects taught, to the character of the 
pedagogical methods used, to the lack of vocational training, 
and to the general ignorance and lack of training of most of the 
teachers. 

In such schools as now exist it is impossible to put into effect 
the educational system which is outlined above, so that young 
persons are being sent out into the world with a preparation 
much below what they might receive in a better school system. 
Furthermore, on account of lack of interest in their studies many 
pupils become truants before they leave school, and some of 
these become vagrants and eventually graduate into a life of 
crime. 

I have already pointed out the high moral value of the intel- 
lectual education to be received in the schools. But the school 
life and discipline has great moral value in other respects as 
well. In fact, in some respects the moral training received in 
the school is superior to that received in the home. In the home 

With respect to "the art of being a guest" the following solemn injunction 
is laid upon the reader: "A formal dinner is one of the most solemn obliga- 
tions of society. After having once accepted the invitation, only death 
or mortal illness is an excuse for not attending." 



JUVENILE CRIMINALITY 22 5 

the deep but narrow filial and fraternal emotions are aroused. 
But in the school life much broader but not so profound social 
emotions are aroused, which are in some ways of greater value 
for the later life of the child in society at large. In the school the 
child is brought into touch with a greater number of and more 
conflicting interests than in the home, and is usually forced to 
adopt a more social point of view than in the home, where a 
socially selfish attitude is likely to be encouraged. There is 
doubtless many a child who is morally successful in his home 
life, but who would be a moral failure in his life in society if he 
did not receive the school training and discipline. 1 

It is impossible to measure directly the influence of faulty 
education upon criminality. Numerous statistics have been 
secured which indicate that the percentage of illiteracy among 
criminals is much higher than it is among the general population. 2 
This seems to indicate a causal relation between ignorance and 
criminality. Some may account for this association between 
ignorance and criminality by the fact that poverty causes much 
of the crime, and that the poor are likely to be ignorant because 
they lack opportunities to be educated. But the truth probably 
is that ignorance gives rise to crime both directly and also 
through the poverty which it causes. 

It has been contended by a few writers that ignorance is not 
a cause of crime, because crime has apparently increased in 
recent years even though illiteracy has decreased. 3 But in 
Chapter VIII I have already pointed out that it seems to be in- 
evitable that the social readjustment required for the progress 

1 Aschaffenburg expresses the opinion that the school furnishes more 
moral training then the home: — 

"As far as the development of altruistic modes of thought are concerned, 
I am inclined to attach still greater importance to the school than to the 
family. The school must not and cannot take the place of the home, but, 
within the close circle of family life, training and education are, after all, 
only possible to a limited extent, because encroachments on others' spheres 
of interest can be but slight in nature. Companionship with others of the 
same age in school, however, entails innumerable conflicts which arouse in 
the child the indistinct desire to have his interests protected against others, 
and also awaken in him an understanding of the necessity of adapting him- 
self to others, to his surroundings, we might say, to the State on a small 
scale." (G. Aschaffenburg, op. cit., pp. 139-140.) 

2 See, for example, W. Bonger, op. cit., pp. 425-434, 483. 

3 See, for example, R. Garofalo, Criminology, Boston, 1914, pp. 137-140. 



226 CRIMINOLOGY 

of civilization should cause some increase of crime. Further- 
more, it must be borne in mind that the percentage of illiteracy 
among the criminals still remains high, even though the general 
average of education is rising. 1 

It has also been contended by some writers that education 
aids criminals in their illegal activities. It goes without saying 
that there are certain kinds of crime, such as forgery, embez- 
zlement, fraud, etc., which require a good deal of knowledge 
and intelligence. But these crimes are probably more than 
counterbalanced by the crimes, which, owing to the ignorance 
of their perpetrators, are so stupid as to be foolish even from 
the point of view of the criminals themselves. And in any case, 
it would be the most egregious folly to argue in favor of keeping 
the populace uneducated and ignorant in order to keep from a 
number of professional criminals the knowledge which would 
enable them to commit some of the higher types of crimes. 

Recreation and Crime 

Lack of adequate and suitable recreational facilities has 
caused much juvenile criminality. This has been especially 
true in the city. Many a city child has had only the street in 
which to play. Here he has been exposed to many immoral and 
vicious suggestions and temptations. Many first violations 
of the law have taken place when playing in the street. Some- 
times the violation was no more than an attempt to satisfy the 
natural and healthful impulse to play by playing baseball or 
some other game forbidden by the law. Sometimes it was 
breaking a window, or petty theft from a peddler or from a 
store window. Frequently these offenses are no more than 

1 Lombroso sums up his explanation of how education is a force both for 
and against crime in the following words: 

"All this explains a phenomenon which appears at first completely self- 
contradictory, namely, that education now increases crime and now de- 
creases it. When education is not yet diffused in a country and has not 
yet reached its full development, it at first increases all crimes except homi- 
cide. But when it is widely disseminated it diminishes all the violent crimes, 
except, as we shall see, the less serious crimes, the political crimes, or the 
commercial or sexual crimes, because these increase naturally with the in- 
crease of human intercourse, business, and cerebral activity. But educa- 
tion has an indisputable influence upon crime in changing its character and 
making it less savage." (C. Lombroso, Crime, Its Causes and Remedies, 
Boston, 1911, p. in.) 



JUVENILE CRIMINALITY 227 

childish pranks from which the child would be saved if he was 
not forced out upon the street to play. Street playing easily 
leads to truancy and vagrancy, which may in turn lead to crime. 

Frequently the gregarious impulses of boys will lead them 
to form street gangs, at first with the most innocent of pur- 
poses. But the power of suggestion and of imitation being 
strong over boys, they are soon led into mischievous pranks 
which no boy would think of doing alone, and these pranks 
are very likely to lead in turn to truly vicious and criminal acts. 
This is especially likely to happen among the immigrant popula- 
tion of our large cities, because the children of the immigrants 
are usually more Americanized than their parents, so that the 
parental control over them becomes weak. 

In passing, we should also note that the theater as a form of 
recreation has some influence upon juvenile criminality. The 
boy who witnesses melodramatic plays and pictures in the 
theatres and moving picture shows which depict crimes and 
acts of violence may be stimulated thereby to try to imitate 
these acts. This is not likely to happen to the healthy, normal 
boy who has plenty of opportunity for healthful and active 
recreation in which he can expend all of his surplus energy and 
can satisfy his desire for excitement and adventure. But the 
city boy who lacks these opportunities may be led into attempts 
to imitate these acts, w T hile any boy who is somewhat abnormal 
physically and mentally in such a way as to be unusually sug- 
gestible is likely to make these attempts. 

Immigration and Crime 

An important factor in juvenile criminality in this country 
is immigration. The significent feature of immigration in this 
connection is that it leads to a conflict between the culture of 
the incoming immigrant and the culture of this country. Es- 
pecially striking is this conflict when the immigrant is of a dif- 
ferent language, race, and religion from the bulk of the popula- 
tion of this country. When this is the case, it requires some 
time for the immigrant to adjust his culture to that of this 
country. In many cases he fails in the main to do so, and con- 
sequently is not assimilated to any great extent. It is difficult 
to ascertain whether this failure on the part of the immigrant 



228 CEIMINOLOGY 

leads to an increase of crime. The latest Census figures seem 
to indicate that such is the case. But there is much reason to 
believe that this failure on the part of the immigrant to become 
assimilated results in an increase in the criminality of his chil- 
dren. The experience of those who have had opportunity to ob- 
serve many of the immigrant families in our large cities confirms 
this belief. 1 

1 The U. S. Immigration Commission studied much of the available statis- 
tics on the relation between immigration and crime and arrived at the fol- 
lowing conclusions: — 

"No satisfactory evidence has yet been produced to show that immigra- 
tion has resulted in an increase in crime disproportionate to the increase in 
adult population. Such comparable statistics of crime and population as 
it has been possible to obtain indicate that immigrants are less prone to 
commit crime than are native Americans. 

"The statistics do indicate, however, that the American-born children 
of immigrants exceed the children of natives in relative amount of crime. 
It also appears from data bearing on the volume of .crime that juvenile 
delinquency is more common among immigrants than it is among Americans. 
There are, however, two factors affecting these conclusions. First, immi- 
grants are found in greater proportion in cities than in rural communities, 
and the criminality of the children of immigrants is largely a product of 
the city. Second, the majority of the juvenile delinquents are found in 
the North Atlantic States, where immigrants form a larger proportion of 
the population than in any other section of the country." {Reports of the 
Immigration Commission, Vol. 36, "Immigration and Crime," Sen. doc. 
750, 61st Cong., 3d sess., p. 1.) 

But the latest Census figures seem to disprove the first part of the con- 
clusion of the Commission. According to these figures the number of native 
whites committed to prison during 1910 was 253,929, and the number of 
foreign-born whites committed during the same year was 99,639. The 
ratio of commitments per 100,000 of population of the same nativity for 
the native whites was 371.3, while for the foreign-born whites it was 746.6. 
In other words, the criminality of the foreign-born whites was twice as great 
as the criminality of native whites. And inasmuch as only 14,147 persons 
were committed to institutions for juvenile delinquents during the same 
year, only a part of whom were foreign-born, the vast majority of the 
foreign-born whites who were committed must have been adults. So that 
these figures seem to indicate that the adult immigrants are much more 
criminal than the native born. 

It must be remembered that this difference is explained in part by the 
difference in the age composition of the two groups, the native born whites 
including a much larger proportion of young children incapable of com- 
mitting crimes. But this difference in age composition can hardly explain 
away the great excess in the criminality of the foreign-born over the 
criminality of the native whites. 



JUVENILE CRIMINALITY 229 

While the immigrant parent may fail to become Americanized, 
his children are sure to become more or less Americanized. 
In many cases this means that the parent will lose his influence 
and control over the children to a considerable extent. The 
result is that the children are likely to go astray, owing to lack 
of parental control. This is all the more likely to happen when 
the children, while losing the moral standards of their parents, 
fail to acquire in full the moral standards of this country. Thus 
cast adrift without adequate moral guidance and bearings, 
many of the first generation born of immigrant parents have 
fallen into careers of crime and vice. 1 

Imprisonment and Juvenile Criminality 

Still another factor in the causation of juvenile criminality 
is the effect of incarceration in industrial and reform schools 
and in reformatories. Sometimes the immediate effect of such 
imprisonment is very bad. But even when these institutions 
are well administered, so that their inmates benefit on the whole 
from their life within them, these inmates are likely to suffer 

1 A writer who observed these phenomena in New York City has described 
them in the following graphic terms: 

"The story of the gang begins. So trained for the responsibility of citi- 
zenship, robbed of home and of childhood, with every prop knocked from 
under him, all the elements that make for strength and character trodden 
out in the making of the boy, all the high ambition of youth caricatured by 
the slum and become base passions, — so equipped he comes to the business 
of life. As a 'kid' he hunted with the pack in the street. As a young man 
he trains with the gang, because it furnishes the means of gratifying his 
inordinate vanity, that is the slum's counterfeit for self-esteem. Upon the 
Jacobs of other days there was a last hold, — the father's authority. Changed 
conditions have loosened that also. There is a time in every young man's 
life when he knows more than his father. ... It is the misfortune of the 
slum boy of to-day that it is really so, and that he knows it. His father is 
an Italian or a Jew, and cannot even speak the language to which the boy 
is born. He has to depend on him in much, in the new order of things. . . . 
That is why the gang appears in the second generation, the first born upon 
the soil, — a fighting gang if the Irishman is there with his ready fist, a 
thievish gang if it is the East Side Jew, — and disappears in the third. The 
second boy's father is not 'slow.' He has had experience. He was clubbed 
into decency in his own day, and the night stick wore off the glamor of the 
thing. His grip on the boy is good, and it holds." (J. A. Riis, A Ten Years' 
War, An Account of the Battle with the Slum in New York, New York, 
1900, pp. 150-152.) 



230 CRIMINOLOGY 

from difficulties of reinstatement after leaving these institutions. 
Even when the boy or girl has been sent to the institution more 
on account of the faults and failings of the parents than of him- 
self or herself, there is usually a stigma attached to the ex- 
inmate of one of these institutions which makes reinstatement 
difficult, and the boy or girl may become confirmed in a life of 
crime and vice. These difficulties have been obviated in part 
by the juvenile court, the probation system, etc., which I 
shall describe later in this book, but still exist to a deplorable 
degree. 



CHAPTER XV 
FEMALE CRIMINALITY 

Apparent preponderance of male over female criminality — Extent and 
character of female crimes — Conjugal condition of criminals — Dif- 
ferences between men and women: physical inferiority and sympa- 
thetic nature of woman; greater variability and katabolism of man — 
Lenient treatment of female criminals — Woman shielded from crim- 
inality by her secluded life — Extra-judicial female crimes — Prostitu- 
tion and crime. 

The available judicial and penal statistics of crime seem to 
indicate that there is much less female than male criminality. 
This is well illustrated in the following table: — 1 



Comparative Criminality of Men and Women 



Of ioo Persons Con- 
victed there were 



Men 

Italy (1885-1889) 84. 1 

Great Britain (1858-64) 79.0 

Denmark and Norway 80.0 

Holland 81.0 

Belgium 82.0 

France 83 . o 

Austria 83 . o 

Baden 84 . o 

Prussia 85 . o 

Russia 91.0 

Buenos-Aires (1892) 96.4 

Algeria (1876-80) 96 . 2 

Victoria (1890) 91.7 

New South Wales 85 . 5 



Women 

15-9 

21 .0 

20.0 

19.0 

18.0 

17.0 

17.0 

16.0 

150 

9.0 

3-6 

3-8 

8-3 

14-5 



Number of Men 
to 1 Woman 



According to this table there is from four to six times as 
much male criminality as there is female criminality. The 
much lower ratios of female criminality in Buenos- Aires and 

1 Adapted from C. Lombroso, Crime, Its Causes and Its Remedies, Boston, 
1911, p. 181. 



232 CRIMINOLOGY 

in Victoria may be due to a disproportionately small number of 
women in the population and to other conditions characteristic 
of new countries, and in Algeria to a backward civilization which 
furnishes women few opportunities for committing crimes. 

Extent and Character of Female Crimes 

Statistics of female criminality in this country are very in- 
adequate. According to the U. S. Bureau of the Census, there 
were on January 1, 19 10, in the penal institutions (state prisons 
and penitentiaries, county jails and workhouses, municipal jails 
and workhouses, institutions for juvenile delinquents, etc.) 
of this country 136,472 inmates. Of these 124,424 were males, 
and 12,048 were females. During the year 1910 there were 
committed to these penal institutions 493,934 persons; of whom 
445,431 were males, and 48,503 were females. The ratio of 
commitments per 100,000 of population was 537.0; for males 
the ratio was 940.9, for females the ratio was 108.8. Conse- 
quently, the ratio for the males divided by the ratio for the 
females, or coefficient of difference, was 8.6. 

These statistics seem to indicate that female criminality in 
relation to male criminality is lower in this country than in 
most civilized countries. But it must be remembered that 
these are the figures for commitments to penal institutions, 
and everywhere courts are more reluctant to send women to 
prison than to imprison men. This is probably even more true 
of the courts in this country than of the courts of other coun- 
tries. So that the apparent deficiency of female criminality 
in this country can doubtless be attributed at least in part to 
the sentimental chivalry (whether mistaken or not we need not 
say here) of the American courts and public. 

The following table indicates the distribution of ten of the 
principal offenses for which men were committed to prison in 
1 9 10 as compared with ten of the principal offenses for which 
women were committed to prison during the same year: — * 
1 U. S. Census Statistics. 



FEMALE CRIMINALITY 233 

Men and Women Committed to Prison in the United States in 1910 

Males 

Commitments 

Offenses Number Per Cent 

Distribution 

All offenses 445,368 100. o 

1. Drunkenness 158,181 35 . 5 

2. Disorderly conduct 76,140 17 . 1 

3. Vagrancy 46,560 10 . 5 

4. Larceny 40,246 9 . o 

5. Assault 21,201 4.8 

6. Fraud 8,858 2 . o 

7. Burglary 8,847 2 ■ ° 

8. Trespassing 8,327 1 . 9 

9. Violating liquor laws 7,219 1 . 6 

10. Gambling 6,834 1 . 5 

All other offenses 62,955 14 . 1 

Females 

Commitments 

Offenses Number Per Cent 

Distribution 

All offenses 48,566 100 . o 

1. Disorderly conduct 15,788 32.5 

2. Drunkenness 12,796 26.3 

3. Vagrancy 3,742 7 . 7 

4. Prostitution 3,155 6 . 5 

5. Larceny 2,470 5 . 1 

6. Assault 1,469 3 • o 

7. Fornication 1,231 2.5 

8. Incorrigibility 787 1.6 

9. Keeping house of ill fame 692 1 . 4 

10. Violating city ordinances 656 1 .4 

All other offenses 5,780 11 .9 

The following tables indicate the comparative criminality 
of men and women in several other countries with respect to 
certain kinds of crime and crimes in general. 



234 



CRIMINOLOGY 



Crimes 



Germany, 1896 x 

Number of Persons 

Convicted to 

100,000 of 

Same Sex 

Men Women 

. . . . 0.02 0.1 

0.4 1.7 

. . . . 6.0 9.2 



Abandonment of children 

Abortion 

Procuration 

Receiving stolen goods (repeated 

recidivism) 0.07 o. 1 

Receiving stolen goods (simple 

recidivism) 26 . 5 13 . 1 

Simple theft 274.6 100.8 

Perjury 3.1 1.2 

Insults 223 . 7 76 . 5 

Simple theft (repeated recidivism) 51.7 14.4 

Homicide 0.5 0.1 

Arson 2.2 0.5 

Embezzlement 85.6 17.6 

Fraud 101 .7 20 . 4 

Crimes in general 2177.07 388-9 

Extortion 3.0 0.4 

Aggravated theft 45 . o 5.6 

Domiciliary trespass 103 .8 12.3 

Minor assaults 138 .3 15.4 

Aggravated theft (repeated 

recidivism) 14.4 1.2 

Serious assaults 448 .4 32.8 

Violence, etc., against officials. . . 88.3 5.6 

Violence and threats 60 . 7 3.6 

Malicious mischief 93-6 5.4 

Robbery 2.4 0.07 

Crimes against morals upon 

children 25.3 0.2 



Number of Women 

Convicted to 

Each 100 Men 

Convicted 

800.0 

437-3 
167.7 

158.3 

53-9 
40. 1 

38.7 
34-2 

30-5 
22.0 
21.8 
20.6 
20. 1 
17.9 
14-3 
13-5 
11. 8 
11. 1 

9.1 
73 
6-3 
5-9 
5-8 
2.9 

0.7 



England and Wales, 1893-1894 2 

Number of Women to 100 
Crimes Persons Sentenced 

1893 1894 

Abortion and failure to report birth 91 86 

Kidnapping and cruelty to children 70 57 

Counterfeiting, etc 18 21 

Malicious mischief 15 20 . 

Crimes against property without violence 19 19 

1 Statistik des Deutschen Reichs, Neue Folge, Kriminalstatistik fiir das 
Jahr, 1896, Erlauterungen, II, p. ^^. 

2 England and Wales, Judicial Statistics, Criminal Statistics, 1894, p. 19. 



FEMALE CRIMINALITY 



235 



Other crimes 16 16 

Crimes of violence against persons n 13 

Robbery and extortion 10 11 

Forgery 9 8 

Domiciliary trespass, etc 3 4 

Sexual crimes 4 3 



Crimes 



Austria," 1899 x 

Of 100 Convicted of Each Crime there were 



Men 

Abandonment of children 7 

Abortion 10 

Murder 69 

Fraud 79 

Theft 80 

Defamation 80 

Arson 85 

Crimes in general 86 

Rebellion 89 

Lese-majeste 91 

Criminal breach of trust 93 

Crime against religion 94 

Robbery 95 

Serious assaults 95 

Sexual crime 96 

Malicious mischief 96 

Homicide 97.3 

Blackmail 97.4 



Women 
93 " 
89 

3°- 
20 

19 
19 
14 
13 
10 



Italy, 1891-1895 2 



Offenses 



To 100 Sentenced for Each 
Offense there were 



Men 



Women 
30 
89 
35 



Infanticide 7 . 70 

Procuration 19. n 

Abortion 21 . 65 

Defamation 53-7° 46 . 30 

Insults 54-78 45 • 22 

Offenses against morals and order of the family .... 58 . 27 41 . 73 
Abandonment of children, abuse of means of 

correction 62 . 85 37.15 

Simple theft 75 . 63 24 . 37 

Fraud in commerce and industry 79 . 46 20 . 54 

1 Die Ergebnisse der Strafrechtspflege in den _ im Reichsrate vertrelenen 
Konigreichen und Ldndern im Jahre 1899 (Esterreichische Statistik, Vienna, 
1903, p. xlix. 

2 Notizie complementari alle slatistiche gindiziarie penali degli anni 1890-95, 
p. xxxvii. 



236 CRIMINOLOGY 

Italy, 1891-1895 — Continued 

To 100 Sentenced for Each 

Offenses Offense there were 

Men Women 

Offenses in general 82 . 81 17-19 

Minor assaults 83 . 32 16 . 68 

Corruption of minors and offenses against decency. . 84.80 15. 20 

Fraud, etc 85 . 74 14 . 26 

Aggravated theft 88 . 77 1 1 . 23 

Threat 90 . 68 9.32 

Rebellion and insults to public officials 90 .95 9.05 

Forgery 92.49 7.51 

Serious assaults 93 . 61 6 . 39 

Murder 93 .91 6.09 

Counterfeit money 1 9502 4 . 98 

Homicide 96 . 74 3 . 26 

Offenses against public order 97-7° 2 . 30 

Robbery, etc 97-77 2 . 23 

Rape, etc 99 . 04 o . 96 

The last four tables also indicate that there -is from four to 
six times as much male criminality as there is female criminal- 
ity. According to the British census of 1910, 51.5 per cent 
of the population of England and Wales were women; according 
to the Austrian census of 1890, 51.6 per cent of the Austrian 
population over 14 years of age were women; and according to 
the Italian census of 1901, 50.6 per cent of the Italian popula- 
tion over 9 years of age were women. So that the population 
of these countries was almost evenly divided between the two 
sexes. 

These tables indicate that in abortion; certain crimes against 
children, such as infanticide, abandonment, kidnapping, cruelty, 
etc.; procuration; and in some forms of receiving stolen goods; 
female criminality exceeds male criminality. Abortion and her 
crimes against children are due to her functions in bearing and 
rearing children, procuration is due to her activities as a pros- 
titute and an exploiter of prostitutes, and receiving stolen 
goods is due to her activities as an accomplice of criminals. 

More detailed analyses of criminal statistics have revealed 
the fact that women commit poisoning more frequently than 
men, this being an easy way for them to commit murder. It is 
probable also that they commit such crimes as vitriol throwing 
more frequently than men, owing to jealousy; and make false 
accusations more frequently than men, owing to their hysterical 



FEMALE CRIMINALITY 23 



tendencies. These false accusations are usually of sexual at- 
tacks upon them by men. 

The above tables also indicate that women commit very few 
crimes of violence, owing largely to their physical weakness. 
Partly for the same reason they commit few of the sexual crimes, 
though this may be due also in part to their more passive sexual 
nature. They commit few of the higher classes of crimes such 
as forgery, embezzlement, counterfeiting money, etc., mainly 
because women do not play an important part in the business 
and professional worlds. 

Conjugal Condition of Criminals 
Before attempting to explain why there is apparently so 
much less female than male criminality, it is desirable to pre- 
sent some data with respect to the conjugal condition of both 
male and female criminals. 

Italy, 1891-1895 1 

Annual Average Number (of Criminals) 
Status to 100,000 of the Population in 

Each Group over 14 years 

Unmarried 978 . 47 

Married 622.27 

Widowers and widows . 291 . 84 

The decrease in criminality from the unmarried, through 
the married, to the widowed should be correlated in the main 
with the increase in age, since I have shown in the preceding 
chapter that criminality is greatest during adolescence and 
early adulthood, and decreases steadily throughout the re- 
mainder of life. 

Netherlands, 1899 2 

Men Women 

To 100 Men To 100 Male To 100 Women To 100 Fe- 
of Marriage- Convicts of of Marriage- male Con- 
able Age Marriageable able Age victs of 
there were: Age there there were: Marriageable 
Status were: Age there were: 

Unmarried 34.8 59.1 36.2 36.7 

Married 58.8 36.7 52.4 52.6 

Widowers, widows, 

divorced 6.4 4.2 11. 4 10.7 

1 Notizie complementari alle stalistiche giudiziarie penali degli anni iSgo* 
1895, p. lii. 

2 W. Bonger, Criminality and Economic Conditions, Boston, 1916, p. 450. 



238 


CRIMINOLOGY 




Switzerland, 1892-1896 x 




Men 


Women 


To 100 of Male 




To 100 of Female 




Population 


To 100 Male 


Population 


To 100 Female 


Status over 12 Yrs. 


Prisoners 


over 12 Yrs. 


Prisoners 


Old there were: 


there were: 


Old there were: 


there were: 


Unmarried 49 . 3 


64.0 


45-7 


48.5 


Married 44 . 8 


26.6 


41.9 


33-o 


Widowers and 








widows 5.5 


5-7 


11. 7 


11. 6 


Divorced 0.4 


3-7 


0.7 


6.9 



The last two tables indicate that the unmarried men are 
much more criminal than the married men, but that the crim- 
inality of the unmarried women is very slightly above that of 
the married women. The following table indicates the dis- 
tribution both with respect to age and with respect to conjugal 
condition, and is, therefore, much more significant than any 
of the preceding tables. 

Germany, 188 2-1 893 2 
Convictions per 100,000 Men and Women of Each Category: 



Age 
Men 
12-15 years. 
15-18 
18-21 
21-25 
25-30 
30-40 
40-50 
50-60 
Over 60 " , 

Women 
12-15 years. 
15-18 
18-21 
21-25 
25-30 
30-40 
40-50 
50-60 
Over 60 



Single 



Married 



Widowed or Divorced 



661 . 1 
1319.2 
2994.5 
3107.0 
2950.9 
9 



2880. 
2205. 
1 241. 



494.6 



6413.0 
3566.3 
2504.7 
1961.2 
1487.8 
1009.8 
490.1 



149 
320 
4i5 
4i7 
440 
446 

334 
221 
102 



602.5 
469.9 

454-5 
500.0 
468.2 
299-5 
133-4 



4273-7 
3797-3 
2626.3 
1267.8 
342.7 



1 339 -3 

1 149 . 2 

1029.9 

709.9 

369.2 

in .2 



1 Die Ergebnisse der Schweizerischen Kriminalstatistik wdhrend der Jahre 
1892-1896, p.21. 

2 Adapted from G. Aschaffenburg, Crime and Its Repression, Boston, 1913, 
p. 164. This author presents these German statistics in much greater detail 
and interprets them in a suggestive manner. 



FEMALE CRIMINALITY 239 

It is evident from the above table that the young married men, 
namely, from 18 to 25 years of age are more criminal than the 
unmarried of the same age. This may be due largely to the 
heedless early marriages among the poor, as a result of which 
many young married men are driven into crime in the effort to 
support their wives and children. But during the other age 
periods the unmarried men surpass the married in their criminal- 
ity. This is probably due in part to the fact that family life has 
a stabilizing effect upon men, and thus restrains them somewhat 
from crime. But it is doubtless due in considerable part to the 
fact that the criminal class is less likely to marry than the non- 
criminal class, thus enhancing the criminality of the unmarried. 

The married women present a striking contrast to the married 
men in the above table, for their criminality surpasses that of 
the unmarried women throughout their lives. This seems to 
contradict the Dutch and Swiss statistics given above which 
indicated that the unmarried women were more criminal than 
the married. But those tables did not differentiate with respect 
to age, so as to make it possible to compare the married and the 
unmarried of the same age groups. The German statistics with 
respect to the specific crimes indicate that the higher criminality 
of the married women is due largely to an excessive number of 
convictions for insult, and to a smaller extent to numerous con- 
victions for breach of the peace and assault and battery. Aschaf- 
fenburg asserts that this is due to the fact that the poorer classes 
are crowded together in tenements, etc., thus giving rise to 
much friction among the women most of whom are married. 1 

Bonger expresses the opinion that the high criminality of the 
married women is due to the fact that a greater proportion of 
the total number of unmarried women is in the middle and upper 
classes than in the poor classes. Consequently, inasmuch as 
there is comparatively little criminality in the middle and upper 
classes, this situation lessens the criminality of the unmarried 
women. 2 Unfortunately we have no good detailed statistics of 
female criminality from any other countries, so that we cannot 
determine whether the situation in Germany is characteristic 
of the remainder of the world. 

The widowed and divorced of both sexes display a high degree 
of criminality. This is probably due in considerable part to the 

1 Op. cit., pp. 166-167. l Op. cit., p, 462. 



240 CRIMINOLOGY 

disturbing effect of losing a spouse, and the consequent breaking 
up of the home. But it is doubtless also due in part to the fact 
that dissolution of marital unions by death or otherwise is more 
likely to take place in the poorer classes whose criminality is 
high than in the well-to-do classes whose criminality is low. 

Briefly summarizing the above statistics, it is evident that 
female criminality tends towards crimes against property 
rather than towards crimes against the person and violent 
crimes. 1 It is also evident that female criminality begins later 
than male criminality, 2 probably largely because girls are kept 
in the home and watched over more carefully than boys. It 
is possible, however, that female criminals are more incorrigible, 
probably in part because the social reinstatement of the female 
criminal is more difficult than that of the male criminal. 

Differences Between Men and Women 

In attempting to explain the apparently lower criminality of 
women as compared with men, we must discuss first the dif- 
ferences between the sexes which are of significance in this con- 
nection. It is evident, to begin with, that woman's inferiority 
in physical strength shuts her out almost entirely from many 
kinds of crime requiring great physical strength, such as bur- 
glary, highway robbery, various forms of murder, etc. Further- 
more, the relatively passive role of the female in sexual inter- 
course makes it almost impossible for her to commit certain 
kinds of sexual crimes, such as rape, however strong may be her 
desire to commit these crimes. 

But there are many who believe that woman's lower criminal- 
ity is also due to a moral superiority on her part. It seems to be 
a widespread opinion that the female sex is innately more moral 

1 "In Germany (1885-90) there were 21 female criminals for every 100 
male. But the proportion differs for different crimes. For crimes against 
public order the proportion is only 9.1 per cent; for crimes against the person, 
15.9 per cent; while for crimes against property it is 27.8 per cent." (R. 
Mayo-Smith, Statistics and Sociology, New York, 1895, p. 277.) 

2 "In the year 1888, while 20 per cent, of the male population of our local 
prisons in England and Wales were under 21, only 12 per cent, of the female 
prison population were under that age. On the other hand, women between 
21 and 50, form a larger proportion of the female prison population, than 
men between the same ages do of the male prison population." (W. D. 
Morrison, Crime and Its Causes, London, 1902, p. 161.) 



FEMALE CRIMINALITY 24I 

than the male sex. An objection to this opinion which imme- 
diately presents itself is that the parentage of every individual 
is bi-sexual, so that every woman inherits from a male as well as 
from a female parent, just as every man inherits from a female 
as well as from a male parent. Furthermore, the recent study 
of heredity furnishes evidence that the sexes are equally potent 
with respect to inheritance. Consequently, even if we were to 
assume that the first woman was an angel and the first man a 
devil, the bi-sexual inheritance of every succeeding generation 
would mix the male and female traits so that before long every 
individual, both male and female, would become a complex of 
angelic and diabolical traits. 

At the same time it is true that the primary and secondary 
sexual traits persist and are monopolized in the main by their 
respective sexes. It is conceivable that in these permanent 
and distinctive sex differences may be found the basis for moral 
differences. The sex differences arise out of the genesic func- 
tions. Maternity, owing to pregnancy, lactation, etc., has much 
more influence upon the female than paternity has upon the 
male. The principal difference having moral significance prob- 
ably is that maternity enhances the emotional traits of woman 
more than paternity enhances the corresponding traits of man. 
So that the sympathetic nature of woman may in some respects 
be superior to that of man. 

But this apparent gain is, after all, dubious, because it has 
drawbacks which probably full compensate for it. The greater 
affectibility of woman also leads to greater instability and ex- 
citability of character. Furthermore, while woman's cerebral 
equipment for intellectual achievement may be as good as that 
of man, her affectibility is prone to interfere with her intellectual 
processes in such a fashion as to render her less logical and ra- 
tional than man. Now both of these defects arising out of her 
sympathetic nature have a moral significance. Morality is 
concerned not only with the relationships within the home, but 
also with the wider relationships in society at large. While a 
profoundly sympathetic nature is of the utmost value in the 
rearing of children, both in the home and in society at large the 
sympathetic feelings need the intellectual guidance which con- 
verts them into the more complex and more valuable trait which 
we may call sympathetic imagination. Consequently, we have 



242 CRIMINOLOGY 

no reason to believe that woman has innate traits which render 
her more moral (e. g., more adaptable to life in society) than 
man, 1 so that we shall have to look elsewhere for an explanation 
of her apparently lower criminality. 

Another sex difference which has been used to explain the 
apparently higher criminality of man is the greater variational 
tendency of man. A vast mass of evidence has been accu- 
mulated by biologists and psychologists which indicates that the 
male sex varies more than the female sex. 2 This fact should 
perhaps be correlated with the fact that the female resembles 
the child more than the male resembles the child. Furthermore, 
it is frequently alleged that the male is more katabolic, the female 
being relatively anabolic. That is to say, the male is said to be 
more active and initiative, thus expending energy more freely, 
while the female is said to be more passive and to be storing up 
energy. The explanation of all these differences and alleged 
differences doubtless is that woman in her sexual traits is highly 
specialized for procreation. Consequently, aside from the 
specialization in her reproductive organs she is unable to vary 
away from the infantile type as much as man, while much of her 
energy and vitality is drafted for use in the performance of her 
genesic functions. 

1 It must be remembered throughout the above discussion that no moral 
traits per se can be inherited. Unfortunately there is not the space to dis- 
cuss at length the sex differences which furnish an anatomical and phys- 
iological basis for moral differences. Havelock Ellis has summarized the 
data on the greater affectibility of woman in the thirteenth chapter of his 
Man and Woman, 5th ed., London, 1914. He closes this chapter with the 
following words: 

"The affectability of women exposes them, as I have had occasion to 
point out, to very diabolical manifestations. It is also the source of very 
much of what is most angelic in woman — their impulses of tenderness, 
their compassion, their moods of divine childhood. Poets have racked their 
brains to express and to account for this mixture of heaven and hell. We 
see that the key is really a very simple one; both the heaven and hell of 
women are but aspects of the same physiological affectability. Seeing 
this, we may see, too, that those worthy persons who are anxious to cut 
off the devil's tail might find, if they succeeded, that they had also shorn 
the angel of her wings. The emotionality of women, within certain limits, 
must decrease; there are those who will find consolations in the gradual 
character of that decrease." (P. 425.) 

2 For brief summaries of this evidence, see H. Ellis, op. cit.; W. I. Thomas, 
Sex and Society, Chicago, 1907. 



FEMALE CRIMINALITY 243 

Some writers have questioned the existence of these sex differ- 
ences. It is true that it is not easy to prove their existence con- 
clusively, because it is difficult to determine upon unit char- 
acters and then to ascertain their comparative variability in the 
two sexes, and because environmental and social factors in- 
fluence the relative activity of the sexes. But it is highly proba- 
ble that the male sex is more variable. The significance of this 
greater variability for our purpose is that the male sex probably 
varies more than the female sex in certain directions which lead 
to crime. For example, the available statistics indicate that 
there is more male than female amentia, and probably more male 
than female insanity. The male sex probably varies more from 
the normal in other respects as well which lead to crime. 

It is hardly necessary to add that the male sex varies from the 
normal more than the female sex also in the direction of unusual 
ability and genius, so that the excessive degree to which it varies 
in injurious ways is doubtless fully compensated for by excessive 
variation in useful directions. 1 

Lenient Treatment of Female Criminals 



Woman is favored in the repression and treatment of crime, 
thus lowering somewhat the statistics of her criminality. The 
victims of female criminals are not so likely to complain against 
them as they would be to complain against male criminals. The 
detected female criminal is frequently not prosecuted so vig- 
orously as the male criminal. When brought to trial she is more 
likely to be acquitted. 2 Men, though stern towards culprits of 
their own sex, are liable to display sentimental weakness towards 
the female criminal. If she were tried by women this would 
probably not be the case. Even when convicted she is less likely 
to be sent to prison, since judges usually try if possible to avoid 
sending a woman to prison and to deal with her more leniently. 

1 For criticisms of the theory that the male sex varies more than the fe- 
male sex, see, Leta S. Hollingworth, Variability as Related to Sex Differences 
in Achievement, in the Am. Jour, of Sociology, Vol. XIX, No. 4, Jan., 1914, 
pp. 510-530; Helen Montague and Leta S. Hollingworth, The Comparative 
Variability of the Sexes at Birth, in the Am. Jour, of Sociology, Vol. XX, 
No. 3, Nov., 19x4, pp. 335-37o- 

2 For statistics of the relative number of acquittals of male and female 
criminals, see, W. Bonger, op. cit., pp. 471-472. 



244 CRIMINOLOGY 

There has, perhaps, been a slight amount of justification for this 
favoritism towards woman, because it is usually more difficult 
for a female ex-convict to reinstate herself in society than it is for 
a male ex-convict. But this leniency has served to cover up and 
hide a part of woman's criminality. 

Woman Shielded from Criminality by Her Secluded Life 

We now come to the two principal causes for the apparently 
lower criminality of women. The first is that women obtain 
much fewer opportunities to commit crimes than men. Woman's 
sphere of activities has almost invariably been within the home, 
frequently much secluded from the outer world. Up to the 
present time they have not taken part to any great extent in the 
economic occupations and the professions outside of the home. 
They have not been subjected to the same extent as men to the 
bitter economic struggle for existence, which is borne for them 
in part by the men. Occupied within the home with their house- 
hold and maternal duties they have been shielded from many 
temptations to commit crimes in the course of economic ac- 
tivities, from many corrupting influences, and to a large extent 
from alcoholic stimulation. 

Furthermore, this seclusion has accentuated the moral timid- 
ity which probably arises out of the distinctively female traits 
which I have already described, and which lessen woman's 
initiativeness. In similar fashion, this seclusion added to these 
innate traits has strengthened her religious sentiment, and 
has made her more superstitious and more amenable to the 
influence of the priest. While I have shown in Chapter VIII 
that religion probably is not in the long run a force against 
crime, it is possible that religious sentiment coupled with moral 
timidity has intimidated women from a certain amount of 
crime. 

It is, therefore, to be expected that as woman's position be- 
comes more like that of man her criminality will increase. That 
this has already happened has been illustrated in the statistics 
cited earlier in this chapter. These indicate that in the more 
civilized countries where women have entered the economic 
occupations and the professions to a considerable extent so that 
her social position has become more like that of man, her crim- 



FEMALE CRIMINALITY 245 

inality is much higher than in the less civilized countries where 
she is still much secluded in the home. The available statistics 
indicate that her criminality is rapidly increasing as she is at- 
taining a greater degree of economic independence. This does 
not mean necessarily that her criminality will ever reach that of 
man, however much her social position may become like that of 
man, for there will always remain the innate physical and mental 
differences between the sexes which tend to depress the relative 
criminality of woman. 

Extra- Judicial Female Crimes 

The second great reason for the apparently lower criminality 
of women is that there are many more extra-judicial female 
crimes than there are extra-judicial male crimes. That is to say, 
there are many more crimes committed by women which are not 
recorded in the judicial statistics than there are of unrecorded 
crimes committed by men. This is due partly to the favoritism 
shown to women which is mentioned above. But it is due prin- 
cipally to the fact that female crimes are more difficult to dis- 
cover than male crimes. A much higher percentage of female 
than of male crimes are crimes of complicity. It is obviously 
more difficult to detect crimes of complicity than crimes which 
are committed overtly. Many a male criminal is being aided by 
a female accomplice who remains in the background. The fact 
that the judicial statistics reveal so large a number of female 
receivers of stolen goods is a slight indication of the extent of 
female complicity. Furthermore, many a man is instigated to 
commit a crime by a woman, even though she may not become 
guilty of complicity in the technical sense. In fact, there is 
evidence of so great an excess of female over male extra-judicial 
crime that some writers have come to the conclusion that it 
fully compensates for the deficiency in female judicial crime. 1 

1 Leale expresses this opinion in the following words: — 
"La femme est moins criminelle que l'homme au point de vue de la crim- 
inalite judiciaire. Absolument parlant, c'est-a-dire eu egard a. la delin- 
quance reelle, on ne peut pas admettre que la femme soit moins criminelle 
que l'homme, autrement dit que le coefficient de criminalite soit plus eleve 
pour les hommes que pour les femmes." (H. Leale, De la criminalite des 
sexes, in the Arch, d'anth. crim., Vol. XXV, June, 1910, p. 430.) 
He characterizes the relative criminality of the sexes as follows: 
"La force du penchant au crime ne differe pas chez les deux sexes. Ce- 



246 CRIMINOLOGY 

However, it is doubtful if woman's criminality equals that of 
man, even when her extra-judicial crimes are included. Both 
on account of her innate traits and her social position, her anti- 
social tendencies are more likely to take an immoral form which 
is not criminal, even though it may do as much harm as many 
kinds of crime. We have reason to believe that women excel 
men in deceitfulness, lying, hypocrisy, malicious gossip, back- 
biting, slander, nagging, etc., and a weaker sense of social 
solidarity and of justice. Some of these traits are not even called 
vices usually, to say nothing of not being crimes. And yet it 
goes without saying that they are perpetual causes of friction in 
society, and give rise to an immense amount of unhappiness. 
So that while women are saved from a certain amount of crime 
by their secluded manner of living, they do not acquire the 
broader outlook upon life which would save them from many of 
the above immoralities. 1 

Hence it is that so far as it is possible to compare the sexes 
with respect to morality, they probably average up about the 
same, but it is impossible to make a strict comparison, for they 
differ from each in such a manner as to be complementary to 
each other, so that they cannot be judged by exactly the same 
standard. 

Prostitution and Crime 

Before closing this chapter it is essential to touch briefly upon 
the relation between prostitution and crime. Some criminolo- 
gists have regarded prostitution as being in large part a female 
equivalent of crime among men. Indeed, Lombroso and Ferrero 

pendant, la quantite reelle des crimes commis par eux peut etre differente, 
et sera superieure chez celui des deux sexes dont le penchant aura ete stimule 
et seconde davantage par tout un ensemble de circonstances fortuites et 
par l'infiuence du milieu propre a chaque sexe." (P. 430.) 

1 For further discussion of female criminality reference may be made to 
the following works: C. Granier, Lafemme crlminelle, Paris, 1906; C. Lom- 
broso and G. Ferrero, La donna delinquente, 3d ed., Turin, 191 5; Pauline 
Tarnowsky, Les femmes homicides, Paris, 1908; N. Colajanni, La sociologia 
criminate, Vol. II, Catania, 1889; A. Corre, Crime et suicide, Paris, 1891, 
Bk. II, Chap. 5; Frances A. Kellor, Experimental Sociology, New York, 1901; 
H. L. Adam, Woman and Crime, London, 1914. Part of the treatise by Lom- 
broso and Ferrero is translated under the title of The Female Offender, New 
York, 1895. 



FEMALE CRIMINALITY 247 

go so far as to classify the prostitutes with the criminals and to 
study them as such, thus making the sum total of female crim- 
inality equal to if not more than the sum total of male crim- 
inality. 1 

There is a small measure of truth in this theory. Some women 
become prostitutes who would become criminals if more or 
better opportunities for criminal careers presented themselves 
to them. Among these are some feebleminded and a few insane 
women, and others who are abnormal in various ways. Some of 
them, perhaps many of them, enter upon a career of prostitution 
because it is the easiest way for them to secure the clothes and 
jewelry which their vanity demands, and to live the life of 
luxury which their weak and idle natures crave. A man who 
wishes to attain similar ends is forced to embark upon a criminal 
career. Owing to the severe social condemnation of prostitu- 
tion, a woman who enters upon a life of prostitution is likely to 
be somewhat brazen and hardened to public opinion to start 
with. Furthermore, prostitution usually has a degrading effect 
upon women, and frequently leads them to crime or to com- 
plicity in crime. 

But it is, in my opinion, an egregious error to identify prosti- 
tution with crime, even though it is sometimes stigmatized by 
the law as criminal. While it is usually regarded as a grave 
violation of the existing moral standard, it should if anything be 
called vicious rather than criminal. This is true, in the first 
place, because both the actions of the prostitute frequently and 
of her customer almost always are due to natural human im- 
pulses, and they act in mutual agreement with each other, so that 
their conduct does not give rise usually to conflict between in- 
dividual interests, as is the case almost invariably with criminal 
conduct. In the second place, many women are forced into 
prostitution by economic necessity, because there are not enough 
openings for women in industry and the professions. Conse- 
quently, prostitution is to a large extent a female professional 
activity, and is more the equivalent of male occupational and 
professional activities than it is of male criminality. 

1 See their treatise mentioned above in which the data with regard to 
prostitutes and female criminals are intermingled and combined with each 
other in such a fashion as to make prostitution and female criminality iden- 
tical, or, to say the least, strictly analogous. 



248 CRIMINOLOGY 

The above statements can be made with a measure of truth 
of male criminality as well, for it also is due in part to natural 
but unregulated human impulses, and is in a sense professional 
when men are forced into criminal careers by economic necessity. 
But these features are much more characteristic of prostitution. 
Inasmuch as prostitution rarely ever leads to a violent conflict of 
individual interests, as is true almost invariably of criminal 
conduct, it should, when harmful to society, be called a vicious 
rather than a criminal form of conduct. 



PART IV 
CRIMINAL JURISPRUDENCE 



CHAPTER XVI 

THE EVOLUTION OF CRIMINAL LAW AND THE 
CLASSIFICATION OF CRIMES 

The origin of criminal law: private vengeance; the lex talionis; composi- 
tion — Influence of despotic, class, and priestly rule — Penal codes — 
The Roman law — The English common law — The king's peace — 
Crimes classified as acts — Functional classifications of crimes — A 
subjective classification of crimes — Relation between the criminal 
and the civil law. 

In primitive communities social control operates through the 
powerful forces of custom, public opinion, tradition, magic, and 
religion. Law in the strict political sense of the term cannot 
exist in these communities. In higher stages of culture, namely, 
in barbarous and semi-civilized societies, the above-mentioned 
forces still continue to exercize a powerful influence. But there 
are at least two new important factors for social control. The 
first of these is the art of writing which makes possible an ac- 
curate, permanent record of laws, in the place of the inaccurate, 
word-of-mouth record of tradition. The second is the state 
which has now evolved from the simpler clan and tribal organiza- 
tion. The organization of the state brings into being a strong, 
centralized government over a definite area of considerable 
extent and over a large number of people. It creates executive 
and legislative authorities for the promulgation and legislation 
of laws, and judicial authorities for their interpretation and 
administration, to a degree which is not possible in the simpler 
forms of social organization. So that written law now comes to 
be one of the most important agencies of social control. 

The Origin of Criminal Law 

Some of the offenses of which the law now takes cognizance 
were formerly subject to private vengeance. Many of the 
offenses in primitive society are subject to private vengeance 
under the so-called lex talionis or law of retaliation (an eye for 
an eye, a tooth for a tooth, a life for a life, etc.). Without 



252 CRIMINOLOGY 

social regulation private vengeance is likely to become exces- 
sive, and to give rise to disorder. Blood feuds arise between 
families, clans, and sometimes tribes, and continue for a long 
time to cause much loss of life. 1 So that it was to be expected 
that with the establishment of the state society would attempt 
to regulate this prolific source of disorder. Such regulation was 
accomplished, not necessarily by making private vengeance 
public, but by specifying through the law the limitations of 
private vengeance, and by establishing courts of justice which 
should decide when private vengeance might be exercized. 

Many of the ancient penal codes are devoted in part to de- 
scribing the offenses in which the victim may take private 
vengeance, and the kind of vengeance permitted. A judgment 
of a court in such a case permitted the victim to wreak ven- 
geance if he chose to do so, but did not usually require it of him. 
As time went by, the practise of compounding for these offenses 
developed. It became possible for the offender to escape ven- 
geance by making a money payment (Anglo-Saxon, hot and , 
wergild) 2 to the victim. 3 

From the early social and legal institutions of private ven- 
geance and of the composition of wrongs there developed a 
considerable part if not all of the civil law and a part of the 
criminal law. In some of the cases in which it came to be recog- 
nized that it was to the public interest that the offender be pun- 
ished, the victim failed to exercize his right of vengeance, so 
that the offender went scot free. Consequently, these offenses 
gradually became public wrongs or crimes, and are now punished 
by society under the criminal law. The scope of the criminal 
law has expanded with the increased complexity of the life and 
organization of the community. 

Influence of Despotic, Class, and Priestly Rule 

Primitive society is more or less democratic in its character. 
It is too simple to permit of great differentiation in the way of 
status. The elders, magicians, and chiefs, of course, have much 

1 Cf. H. E. Seebohm, On the Structure of Greek Tribal Society, London, 

189S, PP. 41-45- 

2 According to the Standard Dictionary, hot = profit, wer =man, gild = pay- 
ment. 

3 Cf. Frederic Seebohm, Tribal Custom in Anglo-Saxon Law, London, 1902. 



THE EVOLUTION OF CRIMINAL LAW 253 

influence. But it is ordinarily impossible for one individual 
or class to dominate for any great length of time. But as we 
pass from the tribal organization to the settled village communi- 
ties, and especially to the state and the nation, there arises the 
autocratic and despotic power of kings, while, as a result of the 
increasing complexity of the political organization due to the 
development of the state, and of the economic organization due 
to the extension of the division of labor, there appear ruling 
classes. 

Despots and ruling classes have used their power to make 
many new crimes in their own interest, and to enforce the 
criminal law in the most drastic fashion. Throughout the long 
and turbulent period during which nations and states were 
being formed, which in some parts, of the world has lasted down 
to the present day, despots and ruling classes have exploited 
the masses partly by means of the criminal law. It is only 
very recently that the modern democratic movement inspired 
by a humanitarian ideal has ameliorated the law, and has greatly 
diminished the extent to which it is used as a means of exploita- 
tion. On the other hand, it is true that centralized power has 
been needed at certain times and places to bring into being a 
strong and effective government. 

Despots and ruling classes have been greatly helped by re- 
ligion. It has almost always been to the interest of the priestly 
class to league itself with despots and ruling classes and to give 
them religious sanction for their tyrannical acts. In many of the 
nations which evolved from a tribal organization the tribal god 
developed into a powerful and frequently a vengeful deity. Con- 
sequently, it became all the more desirable to avoid giving offense 
to this powerful spiritual being. Any offense which could in 
any sense be construed as offending the deity was severely pun- 
ished. The priests have almost invariably encouraged the sup- 
pression of sins by penal measures because it has enhanced their 
power and prestige. 

Kings have been much aided in wielding their power by the 
divinity which has been attributed to them partly because of 
their exalted position, but also for other reasons which I have 
not the space to state here. 1 As a divine or semi-divine person, 

1 See J. G. Frazer, Lectures on the Early History of the Kingship, London, 
1905. 



254 CRIMINOLOGY 

and as the vicegerent of the deity upon earth, a king was enabled 
to punish offenses against himself as being also against the deity. 1 
Hence were derived the notions of the divine right and power of 
kings, 2 justice as emanating from the king, crimes regarded as 
" breaches of the King's peace," etc. 

Penal Codes 

There is not the space to describe the ancient penal codes of 
which historical records remain. 3 Among them are the criminal 
laws of ancient Egypt; the Babylonian code of Hammurabi; 
the oldest extant Hindu code, the Manava Dharma Sastra; 
the Hindu laws of Manu; the laws in the Hebrew scriptures, 
especially the Pentateuch; the ancient Greek law; the Twelve 
Tables of Rome; the Ta Tsing Leu Lee of China; the Tai-ho 
Ritsu of Japan; the Mahommedan criminal law in the Koran; 
the early Germanic criminal law quoted by Tacitus; the Lex 

1 Cf. E. Westermarck, The Origin and Development of the Moral Ideas, 
London, 1906, Vol. I, p. 194. "In the archaic State the king is an 
object of profound regard, and even of religious veneration. He is looked 
upon as a sacred being, and his decrees as the embodiment of divine 
justice. The transgression of any law he makes is, therefore, apt to evoke 
a feeling of public indignation proportionate to the punishment which 
he pleases to inflict on the transgressor. Again, as to acts which are 
supposed to arouse the anger of invisible powers, the people are anxious 
to punish them with the utmost severity so as to prevent the divine wrath 
from turning against the community itself. But the fear which, in such 
cases, lies at the bottom of the punishment, is certainly combined, with 
genuine indignation against the offender, both because he rebels against 
God and religion, and because he thereby exposes the whole community to 
supernatural dangers." 

2 The belief in the divine right of kings still survives even in certain so- 
called civilized countries. As recently as July, 19 16, the German Emperor, 
William II, stated in a public address that he acted by "divine appoint- 
ment." (New York Times, July 26, 1916, p. 10.) See Morton Prince, 
The Psychology of the Kaiser, Boston, 19 15, Chap. Ill, "The Kaiser's Di- 
vine Right Delusion." 

3 Brief summaries of some of these codes are to be found in the following 
works: L. T. Hobhouse, Morals in Evolution, 2d ed., rev., London, 1915, 
Chap. 3; H. Oppenheimer, The Rationale of Punishment, London, 19 13, 
Part II, Chap. 3; E. Durkheim, De la division du travail social, Paris, 1893, 
Chap. 4. See also the important treatises on the evolution of custom and 
law by Maine, Maitland, F. Seebohm, etc. 

The text of some of these codes is to be found in A. Kocourek and J. H. 
Wigmore, Editors, Sources of Ancient and Primitive Laws, Boston, 1915. 



THE EVOLUTION OF CRIMINAL LAW 255 

Salica, probably the earliest Germanic code of which we have 
a written record; an ancient Slavic criminal code in the oldest 
Russian law book, the Ruskala Pravda; the ancient English 
laws in the Domesday Book; the ancient Irish law, or so-called 
Brehon law; the laws of ancient Mexico; the laws of ancient 
Peru; and various others which might be mentioned. 

There are many systems of law in the world today. Each 
system has developed more or less independently, though most 
of them have been influenced at least a little by other systems. 
Some of these legal systems are to be found in barbarous and 
semi-civilized countries, and other systems in civilized countries. 

I shall restrict this discussion to the legal systems of coun- 
tries possessing civilization of European origin. These systems 
are derived almost entirely from two sources, namely, the Roman 
civil law and the English common law. The systems of Roman 
origin cover most of Europe, South and Central America, and 
smaller areas in other parts of the world. The systems of com- 
mon law origin cover most of the British Empire and most of 
the United States. 

I have stated above that in the early stages of cultural 
evolution many injurious acts were punished by private ven- 
geance, usually with the approval of the community. Most of 
these acts later became either public or private wrongs under 
the law. The acts that were regarded as harmful to the whole 
community became crimes or public wrongs, to be punished 
under the criminal law; while those that were regarded as being 
harmful only to individuals became torts or private wrongs to be 
redressed under the civil law. It has usually been assumed that 
no questions of moral turpitude are involved in torts. There has 
always been and still is today more or less shifting of wrongs 
back and forth between the criminal and the civil law, so that an 
act which is at one time regarded as a private wrong is at another 
time regarded as a public wrong and vice versa. 

Some writers on the evolution of criminal law have differen- 
tiated an intermediate type of law between criminal and civil 
law which they have called penal law. By this term they have 
designated the branch of the law formerly very extensive which 
enabled individuals to punish those who had injured them by 
imposing a money penalty or some other form of penalty upon 
them. But this branch of the law has gradually merged en- 



256 CRIMINOLOGY 

tirely or almost entirely into the criminal and the civil law, be- 
cause these offenses have become either crimes or torts. Other 
writers have applied the term penal to all law which provides 
a penalty for any kind of a wrong, whether public or private. l 
But it is now customary to use the term penal law as synonymous 
with criminal law, and I shall follow this usage in this book. 

The Roman Law 

The differentiating of the criminal from the civil law can be 
traced to a certain extent in both the Roman and the English 
law. The Romans developed much more fully the law of torts, 
the law of contracts, the law of testamentary succession, etc., 
than they developed the criminal law. This probably explains 
why the Roman law is frequently called the Civil Law (Jus 
Civile or Corpus Juris Civilis). 2 In the present work, however, 
I shall use the term civil law as applied to the branch of the 
law which has to do with private wrongs, contracts, etc., as dis- 
tinguished from the criminal law. 

The first written records we have of Roman law are to be 
found in the fragments of the Twelve Decemviral Tables (Lex 
Duodecim Tabularum) which have been preserved. These tables 
were prepared about the year 450 B. C, or about half a century 
after the beginning of the Republic, and apparently constituted 
a sort of codification of the existing laws. The eighth table is 
the tabula de delictis which contains the criminal section of this 
code. 3 Some of these delicts were apparently crimes in the 

1 Cf. R. R. Cherry, Lectures on the Growth of Criminal Law in Ancient 
Communities, London, 1890, p. 1. "The terms Criminal Law and Penal Law 
are by no means identical. Though with our modern notions we are apt to 
regard them as so, in the investigation of the laws of- early communities 
the distinction between them must be clearly attended to. Penal Law is a 
term of wider signification than Criminal Law; it means that branch of 
law which deals with punishment, by whomsoever imposed and with what- 
soever object. All Criminal Law is Penal in its nature, i. e., it affects its 
ends by means of punishment, but all Penal Law is not Criminal." 

2 The term "Civil Law" is, however, sometimes limited to the Roman 
private law. "When we speak thus of the Civil Law we mean the whole 
system of usages and rules of private law adopted by the Roman people; 
their jus privatum as opposed to their jus publicum (including criminal and 
sacred law)." (Chas. F. Beach, The Civil Law in America, Paris, 1912, p. 2.) 

3 Cf. J. F. Stephen, History of the Criminal Law of England, London, 1883, 
Vol. I, pp. 9-1 1. 



THE EVOLUTION OF CRIMINAL LAW 257 

modern sense of the term, namely, offenses against the public. 
Among these were murder, perjury, and the making of dis- 
turbances at night; for all of which capital punishment in dif- 
ferent forms is prescribed. On the other hand, breaking a limb, 
unless compensated for, was to be punished by retaliation; 
breaking the tooth or bone of a free man was punishable by a 
fine of 300 asses, of a slave, 15 asses; breach of trust with a de- 
posit was punished by double damages. It is evident that these 
offenses were regarded as private wrongs against individuals, 
and were, therefore, punished by retaliation and compensation. 

Later, when Roman jurisprudence had become well developed, 
delicts were divided into the following four classes: — (1) Theft 
(furtum); (2) Robbery (vi bonorum raptorum); (3) Injuries to 
property (damnum injuria per legem Aquiliam); (4) Injuries to 
the person (injuries). 1 Consequently, these classes included the 
two principal types of offenses to be found in every system of 
criminal law, namely, (1) Crimes against property; (2) Crimes 
against the person. Theft was divided into four sub-classes, 
namely, (1) Theft detected in the commission (furtum manifes- 
tum); (2) Theft not so detected (furtum nee manifestum) ; (3) 
Possession of stolen property discovered upon search (furtum 
conceptum); (4) The introduction of stolen property (furtum 
oblatum). The offenses against the person, or injuria, included 
not only physical damage to the body; but also violations of 
personal freedom, safety, and reputation, namely, assault, libel, 
slander, etc. At first the penalty prescribed by the Roman law 
for these offenses was retaliation, later it became damages, and 
finally under the empire most of these injuria came to be pun- 
ished by the state as public wrongs. 

Still later under the Empire, in the days of Justinian, crimes 
were classified as, (1) Publico judicia; (2) Extraor dinar ia crimina; 
(3) Privata delicta. 2 This classification was based upon the 
manner of prosecution. 

There has been much discussion of the superior development 
of the civil over the criminal law in Roman jurisprudence. For 
example, Maine, speaking of early jurisprudence with special 
reference to the Roman system, says: — "If therefore the crite- 
rion of a delict, wrong, or tort be that the person who suffers it, 

1 Cf. R. R. Cherry, op. cit., p. 66. - 

2 Cf. J. F. Stephen, op. cit., Vol. I, pp. 12/. 



258 CRIMINOLOGY 

and not the State, is conceived to be wronged, it may be asserted 
that in the infancy of jurisprudence the citizen depends for pro- 
tection against violence or fraud not on the Law of Crime but 
on the Law of Tort." 1 Cherry suggests three reasons for the 
superior development of the Roman civil law, namely, (1) the 
form of government; (2) the essentially irreligious character of 
the people; (3) the existence of slavery. 2 From 509 B. C. to 
27 B. C. Rome was a republic. Consequently, the power of the 
state was not so highly centralized as it is under a monarchy, 
and there was not so great a development of the punitive arm 
of the government as there usually is under a monarchical form 
of government. 

Cherry asserts that the Romans did not punish sins, or of- 
fenses against the gods, because they believed that the gods 
themselves should avenge these insults. But he doubtless 
underestimated the extent to which magical and religious ideas 
influenced Roman jurisprudence, so that his second reason 
is probably only partially true. In every community the major- 
ity of crimes are committed by the lowest class of the popula- 
tion. In Rome the lowest class was composed largely of slaves. 
The masters of the slaves were civilly responsible for the acts 
of their slaves, and could punish the slaves. So that the Roman 
law did not have, to exercize punitive measures for the restraint 
of slaves. 

In any case, whatever may have been the reasons for the slow 
development of the criminal law under the Republic, it attained 
respectable proportions under the Empire. Furthermore, the 
legal procedure developed in the Roman jurisprudence has had 
a great influence, both directly and through the canon law. It 
must also be remembered that the criminal law and the civil 
law are always closely related, and that an efficient system of 
civil law usually lessens the amount of crime, thus reacting upon 
the criminal law. So that in various ways Roman jurisprudence 
has had much influence upon modern criminal law. 

The English Common Law 
The English criminal law has developed from several sources. 
It is difficult to ascertain to what extent it can be traced back 

1 H. S. Maine, Ancient Law, London, 1891, p. 371. 

2 R. R. Cherry, op. cit., p. 75. 



THE EVOLUTION OF CRIMINAL LAW 259 

to the prehistoric inhabitants of the British Isles, since almost 
no records remain of the legal system of those inhabitants. The 
best record extant is of the ancient Irish or so-called Brehon 
law, which remained in force in a remarkably archaic form 
through several centuries of the Christian era. This system 
of law furnishes some indication of what the primitive law in 
Britain must have been like, as well as throwing a good deal 
of light upon the early evolution of jurisprudence. 1 

For several centuries the Romans held Britain as a colony. 
During this period they introduced the Roman law as well as 
the rest of the Roman culture, and developed a high degree of 
civilization in this colony. But it is difficult to ascertain how 
much of their law remained behind when they evacuated Britain 

1 The Brehon law has been briefly described in the following words: 
"The study of the Brehon Law thus enables us to trace the progress of 
primitive ideas as to penal legislation generally. The earliest source to 
which we can trace back Penal Law is the principle of simple retaliation — 
an eye for an eye, a tooth for a tooth, life for life. This retaliation was not 
imposed, but simply permitted by society. The next step is the custom of 
buying off vengeance, either by the individual who has inflicted the injury, 
or his tribe. A pecuniary payment thus comes to be looked upon as a satis- 
faction for a crime. The wrong-doer gains his life: the injured man some- 
thing valuable, in lieu of useless vengeance, his pride at the same time being 
appeased by the submission: society is benefited by an end being put to 
disturbance and fighting. Once the custom becomes general, disputes will 
certainly arise as to the amount of the payment. If the parties cannot 
come to terms both will lose; to avoid such a contingency they agree to 
refer it to the arbitration of the person who is most likely to know what was 
usually the amount paid in similar cases — this is the poet of the tribe, 
whose duty it is to recite its history at the tribal meetings. The ancient 
Irish Law expressly tells us that in former times the legal jurisdiction was 
vested in the poets. The next step is the direct intervention of the tribe 
itself, or its chief. The conduct of the man who refuses to submit his case 
to arbitration is plainly unreasonable. The whole tribe is interested in 
preserving peace — his conduct imperils it — they will endeavour to force 
him to submit. The retaliative principle again recurs here. If he refuses 
to pay fines, what more natural than to refuse to allow him to recover them? 
His honour-price is forfeited, and thereby he at once becomes a ' lawless man/ 
whom anybody may kill with impunity. The prototype of a modern crim- 
inal trial then appears in the solemn proclamation at the tribal meeting, 
by the King or chief, of this sentence of outlawry. We have no direct evi- 
dence that the Brehon Law ever attained to this latter stage of develop- 
ment — at all events it never passed beyond it." (R. R. Cherry, op. cit. t 
pp. 38-9.) 

See also Laurence Ginnell, The Brehon Laivs, London, 1894. 



260 CRIMINOLOGY 

in the fifth century of the present era. 1 It may have left a few 
traces at that time. It goes without saying that later it had 
some influence indirectly through the relations between England 
and the Continental countries, especially through the canonical 
law which influenced English equity jurisprudence greatly. 
However, it is probable that the influence of Roman jurispru- 
dence upon the evolution of English law has been comparatively 
slight. 

Then came invasions of Britain by various peoples from 
Northern Europe, especially by two Teutonic tribes, the Angles 
and the Saxons. The Anglo-Saxons made the principal contri- 
bution to the law as they did to the language and to other 
phases of the culture of the English. Later came the Norman 
Conquest. But comparatively few Normans appear to have 
settled in England. Furthermore, the Normans also were of 
Teutonic origin, and had derived much of their jurisprudence 
as well as other phases of their culture from Teutonic sources, 
though they had acquired a language of Latin "origin. So that 
the Normans seem to have had comparatively little effect upon 
English jurisprudence, though they had considerable influ- 
ence upon the English language. 

Let us now discuss briefly the principal traits of the early 
English criminal law. 2 Like every other system of punitive law 
it gives evidence of being based in large part upon the principle 
of retaliation, the lex talionis. In the Anglo-Saxon and in the 
early English law many offenses against persons and property 
were compounded. Three kinds of compensation may be men- 
tioned which were to be paid according to the nature of the 
case. Bot was a general term for compensation of any kind, 
but was applied more particularly to compensation which 
varied according to the nature of the act committed. In case 
of theft it amounted to as much as or more than the value of 
the stolen goods. The wergild, or wer, was the price of a man 



1 Cf. L. O. Pike, A History of Crime in England, London, 1873, Vol. I, 
Chap. 1. 

2 For more extended discussions of this subject see the historical works 
of Pollock and Maitland, Holdsworth, Stephen, etc. A very brief descrip- 
tion is given by H. L. Carson in an article entitled, A Sketch of the Early 
Development of English Criminal Law as Displayed in Anglo-Saxon Law, in 
the Jour. Crim. Law, Vol. VI, No. 5, Jan., 1916, pp. 648-662. 



THE EVOLUTION OF CRIMINAL LAW 26l 

which was determined by his rank, and was paid to his relatives 
in case of his death. But the wer was also sometimes the amount 
to be paid by a man when he had committed certain offenses 
other than murder. The wite was a fine to be paid to the king 
as a penalty for the breach of his peace, or to some other public 
authority. 

If an offender failed to pay the compensation imposed upon 
him, he was outlawed. This meant that he lost all rights of 
person and property, that he lost his wergild, and therefore 
could be killed with impunity. The wite and outlawry mark 
steps towards treating offenses as public rather than as private 
wrongs, for outlawry became a sort of public punishment im- 
posed and enforced by the courts, and the wite was an exercize 
of power on the part of the king or some other public authority 
for the administration of justice. This brings us to the subject 
of the king's peace, which became one of the principal instru- 
ments for the development of a true system of criminal law in 
England. 

The king's peace began as a requirement that order must be 
maintained in the immediate vicinity of the king. Consequently, 
if a crime was committed within this region, it became not only 
an offense against the individual victim or victims of the crime, 
but also a breach of the king's peace, and therefore an offense 
against him which he had the right to punish. At first the 
king's peace extended only over a small area where he happened 
to be, and for a short distance around his palaces and castles. 
Later it was extended to other regions, as, for example, the 
public highway, and finally covered the whole kingdom. At 
first the peace did not exist during an interregnum between two 
reigns, which therefore was a time of great disorder. But later 
the peace became uninterrupted in time. 

Various factors played a part in making the king's peace 
universal in extent. 1 Probably the most important factor was 
the increase in the power of the king and of the state. This was 
particularly true after the Norman Conquest. In fact, it was 
during the reign of William the Conqueror that the king's peace 
was extended over the whole kingdom. Another reason was 
an increase in the number of offenses which could not be com- 

1 Cf. W. S. Holdsworth, A History of English Law, London, 1909, Vol. II, 
pp. 38-40. 



262 CRIMINOLOGY 

pensated with money. These included treasonable offenses, 
offenses against morality and religion, etc. Such offenses would 
escape punishment if not punished by the king. Another reason 
may have been an increasing number of persons who lacked 
kindred who could avenge offenses against them. Such persons 
might be manumitted slaves, members of a conquering people 
such as the Normans who had left their kindred behind, etc. 
In such cases it would become necessary for the king to take the 
place of the kindred in inflicting vengeance. The church also 
probably encouraged the extension of the king's peace by sup- 
porting the state, and by sanctifying the kingship. 

The development of the king's peace in England is an inter- 
esting example of the influence of the monarchy upon the evolu- 
tion of criminal law. It may be compared with a similar peace 
established by sovereigns in other countries, but it is doubtful 
if a royal peace was extended in any other country so far as it 
was extended in England. It may also be compared with the 
truce of God (treuga Dei) declared many times by ecclesiastics 
of the church and sometimes by sovereigns during the feudal 
period on the Continent in the effort to put a check upon private 
war. 

The extension of the power of the king through the king's 
peace led to many harsh and cruel forms of punishment, some 
of which persisted down to recent times. But it must be re- 
membered that the extension of the king's power came at a 
time when life and property received comparatively little pro- 
tection, and when there was great need for a strong central 
authority. The institution of monarchy provided this pro- 
tection, and the tradition of the monarchical authority is per- 
petuated to the present day in the indictment and other forms 
of prosecution in which is assumed the legal fiction that crimes 
are offenses against the king and the crown. 

The common law, therefore, has its roots mainly in the Anglo- 
Saxon jurisprudence. Since the establishment of the king's 
peace it has been developed by the decisions of courts and the 
statutes passed by Parliament. In the evolution of the common 
law is exemplified the transition from the time when the major- 
ity of offenses were private wrongs or torts to be punished by 
blood-feud or composition to the time when many of these 
became public wrongs or crimes in the strict sense of the term 



THE EVOLUTION OF CRIMINAL LAW 263 

to be punished by the state. 1 So that the common law furnishes 
an interesting and striking example of the more or less sponta- 
neous and unintended development of organized social control. 2 

1 "On the eve of the Norman Conquest what we may call the criminal law 
of England (but it was also the law of 'torts' or civil wrongs) contained 
four elements which deserve attention; its past history had in the main 
consisted of the varying relations between them. We have to speak of out- 
lawry, of the blood-feud, of the tariffs of wer and hot and wite, of punish- 
ment in life and limb. As regards the malefactor, the community may 
assume one of four attitudes: it may make war upon him, it may leave him 
exposed to the vengeance of those whom he has wronged, it may suffer him 
to make atonement, it may inflict on him a determinate punishment, death, 
mutilation, or the like." (F. Pollock and F. W. Maitland, The History of 
English Law Before the Time of Edward I, Cambridge, 1895, Vol. II, p. 447.) 

2 The evolution of public justice has been well summarized by another 
writer in the following words: — 

"Briefly to resume the main phases in the evolution of public justice, we 
find that at the outset pure anarchy or self-redress is qualified first by the 
sense of solidarity within the primary social unit. This expresses itself first 
in the repression of offences, especially of a sacral character, held dangerous 
to the group as a whole, and then in the control of self-redress. As between 
the primary units a system of collective self-redress arises which in turn 
yields to the authority of chief or council representing the larger community 
as a whole. As long as the vindication of rights rests mainly in the hands 
of the kindred or other group, responsibility is collective, intention is apt 
to be ignored and punishment is not assessed according to the merit of the 
individual. When retaliation is mitigated by the introduction of money 
payments no change in ethical principle occurs. It is only as social order 
evolves an independent organ for the adjustment of disputes and the pre- 
vention of crime, that the ethical idea becomes separated out from the con- 
flicting passions which are its earlier husk, and step by step the individual is 
separated from his family, his intentions are taken into account, his formal 
rectitude or want of rectitude is thrown into the background by the essential 
justice of the case, appeals to magical processes are abandoned, and the law 
sets before itself the aim of discovering the facts and maintaining right or 
punishing wrong accordingly. 

"The rise of public justice proper necessitates the gradual abandonment 
of the whole conception of the trial as a struggle between two parties, and 
substitutes the idea of ascertaining the actual truth in order that justice 
may be done. That is at first carried out by supernatural means, viz., by 
the Ordeal and the Oath. These in turn give way to a true judicial inquiry 
by evidence and rational proof. The transition occurred in England mainly 
during the thirteenth century, the turning point being marked by the pro- 
hibition of the Ordeal by Innocent III, in 12 15. The early stages of public 
justice administered by the recently developed central power led to exces- 
sive barbarity in the discovery and punishment of crime. It took some 
more centuries to prove to the world that efficacy in these relations could 



264 CRIMINOLOGY 

It is unfortunate that Anglo-American jurisprudence has not 
been influenced more by the Roman law. The legal systems 
based upon the Civil Law have usually been codified, and have 
revealed the philosophic spirit and the orderly arrangement 
characteristic of the Roman law. The most notable modern 
example of this sort is the Code Napoleon, created at the begin- 
ning of the nineteenth century by order of Napoleon the First, 
which incorporated a large part of the Civil Law, and which still 
constitutes a large part of the jurisprudence of France as well as 
of many other countries. 

The common law, on the contrary, evolved in a more or less 
hit-or-miss fashion from judicial decisions, some of which have 
been good, while other decisions have been exceedingly bad. The 
constant search for precedents inevitably dulls the philosophic 
sense. Consequently, as I have said in my book on criminal 
procedure, "English and American jurists and legal writers have 
concerned themselves very little with the philosophic aspect of 
the principles they have studied, being principally interested in 
tracing them to their origin in judicial decisions. This is quite in 
contrast with Continental jurists and writers who have always 
paid a great deal of attention to the philosophic aspect of legal 
principles. It has been a great loss to our law that it has not 
been treated in this philosophic spirit. This treatment would 
be a valuable criticism of some principles, in the case of others 
it would greatly broaden their application. Especially true is 
this of criminal law which should always keep the pace with the 
sciences and philosophy which deal with, social relations. The 
fundamental nature and the ultimate object of criminal law 
should always be kept in view, and its applications always ad- 
justed to the current conception of this object." l 

Crimes Classified as Acts 

The simplest method of classifying crimes is by means of a 
category of acts, that is to say, by grouping together the criminal 

be reconciled with humanity and a rational consideration of the best means 
of getting at truth. By so long and roundabout a process is a result, so 
simple and obvious to our minds, attained." (L. T. Hobhouse, Morals in 
Evolution, 2d ed., rev., London, 1915, pp. 130-13 1.) 

1 The Principles of Anthropology and Sociology in Their Relations to Crim- 
inal Procedure, New York, 1908, pp. 182-183. 



THE EVOLUTION OF CRIMINAL LAW 265 

acts which are similar to each other. Thus all forms of homicide 
would be grouped together, all forms of theft would be grouped 
together, etc. This method of classification is frequently used in 
penal codes. But legal classifications of crimes are also fre- 
quently based upon the kinds of procedure used in trying crim- 
inal cases and upon the degrees of severity of the punishments 
inflicted. Another method of classifying crimes which is not fre- 
quently used in legal classifications is the functional method, that 
is to say, according to the purposes to be attained by punishment. 

In the common law there gradually evolved a three-fold 
classification of crimes, namely, (i) Treason; (2) Felony; (3) Mis- 
demeanor. Treason seems at first to have been regarded as one 
of the felonies, but in course of time became sharply differen- 
tiated. It is by definition an act which is directed at the exist- 
ence of the state itself. But in the old English law many acts 
directed against the king and members of the royal family were 
treasonable, and the same is still true of several of these acts. 
As to whether or not these acts should be classified as treasonable 
depends, of course, upon whether or not they are in reality di- 
rected against the state itself, and this in turn depends upon 
the nature of the state. In all probability in the great majority 
of cases it has not been justifiable to classify acts against the 
royal family as treasonable, for they have not menaced the 
existence of the state itself, and such criminal laws have been 
examples of the abuse of monarchical power. 

The felonies were originally the offenses which were un- 
emendable, that is to say, which could not be compounded be- 
cause of their heinousness. 1 They were punished by the for- 
feiture of the criminal's estate, and frequently of his life. There 
were seven felonies distinctly recognized by the common law, 
three of which are against the person, namely, murder, man- 
slaughter, and rape; and four of which are against the property 
of individuals, namely, arson, burglary, theft or larceny, and 
robbery. Three other crimes, namely, wounding, mayhem, and 

1 See, for a discussion of the evolution of felony, Pollock and Maitland, 
op. cit., Vol. II, pp. 460-509. "At all events this word, expressive to the 
common ear of all that was most hateful to God and man, was soon in Eng- 
land and Normandy a general name for the worst, the utterly 'bootless' 
crimes. In later days technical learning collected around it and gave rise 
to complications, insomuch that to define a felony became impossible; one 
could do no more than enumerate the felonies." (P. 464.) 



266 CRIMINOLOGY 

false imprisonment, have at one time or another been called 
felonies; while, as we have seen, treason was apparently orig- 
inally a felony. But to these so-called common law felonies 
have been added by means of statutes enacted by Parliament 
numerous other felonies, so that the total number of felonies is 
now very great. 

The misdemeanors, originally known as "transgressions" or 
"trespasses," were and are still the crimes less grave than the 
felonies. But in recent years there has been recognized a group 
of petty offenses which are distinguished both from felonies and 
misdemeanors, because they are tried by a modern method of 
summary procedure without a jury. No suitable name has as 
yet been applied to them. The term "trespass" could appro- 
priately be revived and applied to this group of the most trivial 
of crimes. 

A present day authority on English criminal law has classified 
crimes in that law in the following manner: — "- 

"Public wrongs, Pleas of the Crown, or — to use a phrase more 
familiar but more ambiguous — Crimes, may be arranged, ac- 
cording to their technical degrees of importance, in the following 
series of groups. 

"I. Indictable offences; i. e., those which admit of trial by 
jury. 

"(i) Treasons, 

"(2) (Other) Felonies, 

"(3) Misdemeanors. 

"II. Petty offences, i. e., those which are tried summarily by 
justices of the peace sitting without a jury." 

The criminal law of all of the United States, with the excep- 
tion of one state (Louisiana), is based upon the English common 
law. In this country treason consists of acts committed against 
the United States or against an individual state. The common 
law felonies are included in most if not all of the American penal 
codes, and also many of the English statute felonies and mis- 
demeanors. The common law classification is also followed in a 
general way. For example, the New York State Penal Code 
gives the following classification of crimes: — 2 

1 C. S. Kenny, Outlines of Criminal Law, Cambridge, 1902, p. 91. 

2 Penal Law of the State of New York, edited by A. J. Parker, New York, 
1915, Art. I, Sec. 2, 



THE EVOLUTION OF CRIMINAL LAW 267 

" Division of crime. A crime is 

" 1. A felony; or, 

u 2. A misdemeanor. 

" Felony. A * felony' is a crime which is or may be punishable 
by 

"1. Death; or, 

" 2. Imprisonment in a state prison. 

"Misdemeanor. Any other crime is a 'misdemeanor.'" 

The classifications which have so far been mentioned have 
been determined mainly by legal considerations, that is to say, 
by the different kinds of procedure used and the degrees of 
punishment inflicted. The same is true of the criminal law of 
Continental countries, which is based in the main upon Roman 
jurisprudence. 

In the French penal code offenses are divided into three 
classes, namely, crimes, misdemeanors, and trespasses (crimes, 
delits, et contraventions), according to the penalties prescribed 
by the law. 1 Crimes (crimes), which are the most serious 
offenses, are punished by death, penal servitude, transportation, 
military imprisonment, solitary confinement, banishment, or 
civil degradation. Misdemeanors (delits), which are less serious, 
are punished by imprisonment for over five days, fine of over 
fifteen francs, or deprivation of the exercize of certain civil and 
family rights. Trespasses (contraventions) , the most trivial of 
offenses, are punished by imprisonment from one to five days, or 
by a fine of from one to fifteen francs. 'This classification has 
been adopted by the majority of the Continental codes, as, for 
example, by the German code of 1870, and was retained in the 
Belgian code of 1S67. 2 

A bipartite classification of offenses was adopted by the Dutch 
code of 1881, and in the Italian code of 1889. According to 
this classification offenses are divided into misdemeanors and 
trespasses (delits et contraventions). Misdemeanors are offenses 
of every degree of gravity which are intentional and immoral. 
Trespasses are unintentional offenses, which are therefore pre- 
sumably not immoral. 

1 Cf. E. Jarno, in The Penal Codes of France, Germany, Belgium and Japan, 
edited by S. J. Barrows, Washington, 1001, pp. 15-17. See also Les codes 
de la repiiblique francaise, edited by A. F. Teulet, Paris, 1881. 

2 Cf. F. von Liszt, Editor, Le droit criminal des etats curopecns, Berlin, 1894. 



268 CRIMINOLOGY 

Let us now consider the acts themselves which have been and 
are stigmatized as criminal. We find ourselves before a bewilder- 
ing array, because at one time or another a vast number of acts 
have been criminal. It is therefore impossible to prepare a 
universal category of crimes. Many acts which at certain times 
and places have been criminal have at other times and places 
been regarded as moral. In order to illustrate in a concrete 
instance the range of acts stigmatized, I will enumerate some 
of the acts which under given conditions are criminal according 
to the New York State Penal Code. Among them are abduc- 
tion, abortion, adultery, anarchy, arson, assault, attempt to 
commit crime, bigamy, bribery and corruption, burglary, com- 
pounding crime, contempt of court, crime against nature, dis- 
orderly conduct, dueling, extortion and threats, forgery, fraud 
and cheats, gambling, homicide, incest, indecency, intoxication, 
kidnapping, larceny, libel, maiming, malicious mischief, nuis- 
ances, perjury and subornation of perjury, prize-fighting and 
sparring, rape, riots and unlawful assemblies, robbery, sabbath- 
breaking, seduction, suicide, treason, usury. 

But a mechanical, alphabetical enumeration of criminal 
acts does not furnish a clear picture of the kinds of acts stigma- 
tized by the criminal law. A better picture is furnished by means 
of a functional classification, in which crimes are classified 
according to the ends subserved by the law. 

Functional Classifications of Crimes 

A clearcut functional classification which is frequently used is 
the following: — 

i. Protection of the person (life and limb). 

2. Protection of private property. 

3. Protection of government and other public interests. 

It is easy to classify the great majority of crimes under one 
or another of these three heads, though doubt may arise as to 
the correct classification of a few crimes. Furthermore, there 
are few if any crimes which do not fail under one or another of 
these classes. 1 

1 Stephen gives a classification similar to the above but a little more de- 
tailed, op. cit., Vol. I, p. 3. 



THE EVOLUTION OF CRIMINAL LAW 269 

Another classification which is less clearcut but more detailed 
is the following: — 1 

1. Crimes against public justice. 

2. Crimes against public peace. 

3. Crimes against public trade. 

4. Crimes against public health. 

5. Crimes against public policy. 

6. Crimes against the persons of individuals. 

7. Crimes against the property of individuals. 

8. Attempts. 

9. Solicitations. 

This classification has been somewhat influenced by legal 
considerations, but is in the main functional in character. 2 

Another functional classification, proposed by Durkheim, is 
based upon the collective feelings or sentiments w 7 hich are 
violated by the criminal acts. 3 

Laws Prohibiting Acts Contrary to the Collective Sentiments 

I 
Having General Objects 

1. Religious sentiments. 

2. National sentiments. (Treason, civil war, etc.) 

3. Domestic sentiments. 

4. Sentiments with regard to sexual relations. 

1 W. C. Robinson, Elementary Law, Boston, 1882. 

2 Freund suggests the following classification : 

(1) Political offenses. 

(2) Statute violations. 

(3) Administrative crimes. 

(4) Police offenses. 

(5) Crimes against morality. 

(6) Common or ordinary crimes. 

He alleges that in this classification crimes have been grouped "according 
to the great categories of the interest attacked or violated." But it is dif- 
ficult to discover, even with the aid of his own explanation, any consistent 
principle underlying it, and it is obviously much confused. (E. Freund, 
Classification and Definition of Crimes, in the Jour. Crim. Law, Vol. V, No. 6, 
Mar., 1915, pp. 807-827.) 

For a more intensive discussion of the classification of crimes see, R. de 
la Grasserie, De la classification des actes criminels, in the Revue Internationale 
de sociologie, Vol. IX, No. 8-9, Aug.-Sept., 1901, pp. 613-632. 

3 E. Durkheim, De la division du travail social, Paris, 1893, pp. 166-8. 



270 CRIMINOLOGY 

5. Sentiments with regard to work. (Mendicancy, vagrancy, 
etc.). 

6. Various traditional sentiments with regard to professional 
usages, food, dress, ceremonial, etc. 

7. Sentiments with regard to the organ of the common con- 
sciousness. (Rebellion, political corruption, etc.) 

II 
Having Individual Objects 

1. Sentiments with regard to the person. 

2. Sentiments with regard to private property. 

3. Sentiments with regard to groups of individuals, either 
concerning their persons, or their property. (Counterfeiting, 
bankruptcy, arson, etc.) 

This classification is suggestive of a psychological basis, but 
it is rather vague, and seems to overlap in some cases (as, for 
example, I, 2, and 7). 

A Subjective Classification of Crimes 

With the exception of the last one, the classifications which 
have been cited are mainly objective in their character. They 
are based largely upon the material things which are injured by 
the crimes, such as the persons of the victims, their property, 
etc. But in many cases the things which are injured are rela- 
tionships which are not material in their character. In fact, 
it might be possible to classify most if not all crimes according 
to the relationships violated by them. There would be the 
crimes which violate parental and filial relations, those which 
violate sexual and conjugal relations, those which violate the 
relations between the state and the citizen, etc. Such a classi- 
fication of crimes would vary from time to time and from place 
to place according to the kinds of relations which existed, and 
the rights which had arisen out of these relations. 

A subjective classification also might be devized which would 
be based upon the mental traits violated or, to say the least, 
aroused by the crimes. These would include the instincts, the 
feelings, the ideas which mankind has acquired, and the senti- 
ments which are associations of ideas and feelings. So that 
crimes would be classified according to whether they aroused 
the instinct of pugnacity or the emotion of anger, whether they 



THE EVOLUTION OF CRIMINAL LAW 271 

opposed the sexual instincts or violated the parental feelings, 
whether they were incompatible with prevailing economic and 
political ideas, or whether they violated patriotic and religious 
sentiments. A thoroughgoing classification of this sort would 
be very elaborate and complex, and would require for its prep- 
aration an extensive knowledge of psychology and sociology. 
Such a classification also would vary from time to time and 
from place to place, because ideas and sentiments change greatly, 
and the instincts and feelings are much influenced by habit 
and custom, though their character as hereditary traits change 
very little if at all. 

Relation between the Criminal and the Civil Law 

Earlier in this chapter it has been noted that there is constant 
shifting back and forth between the criminal and the civil law, 
owing to changes in social conditions and public opinion. Thus 
a violation of a contract or a private wrong or tort may become 
a public wrong or crime, or vice versa. For example, it was cus- 
tomary formerly to imprison debtors as if they were criminals. 
Today the law usually regards a debt as a violation of a contract. 
This is doubtless correct in most cases, since most debtors fail 
to pay their debts because they are unable to do so. It must, 
however, fee remembered that there are fraudulent as well as 
honest debtors, namely, debtors who have never intended to 
repay their debts, and who should, therefore, be treated as 
criminals. 

In large cities there are numerous regulations such as munic- 
ipal ordinances regarding sanitation, tenement houses, traffic, 
etc., violations of which are frequently classified as criminal. 
Many of these violations of the law are committed without crim- 
inal intent, but owing to ignorance or carelessness. By making 
these offenses criminal the tendency is to remove the stigma 
from criminality, and thus to diminish greatly the effectiveness 
of the criminal law. It would doubtless be preferable not to 
stigmatize them as criminal. It would perhaps be advisable to 
create for these unintentional violations a new category of 
offenses which are harmful to society, but which are committed 
without any criminal intent. These offenses would be inter- 
mediate between violations of the civil law and violations of the 
criminal law. 



CHAPTER XVII 
THE FUNCTIONS OF CRIMINAL PROCEDURE 

The procedure of accusation — The procedure of investigation — English 
and French criminal procedure — Combination of the procedures of 
accusation and investigation: public prosecution — The reform of 
criminal procedure. 

After criminal law came into existence it became necessary 
to devize a mechanism for applying it. To attain this end two 
things must be accomplished, namely, to determine that a 
crime has been committed, and to ascertain who committed it. 
Criminal procedure has evolved for the purpose of performing 
these functions, and operates through courts and judges. 

The functions of criminal procedure are of the utmost im- 
portance to society. On the one hand, it is essential that every 
criminal be apprehended and his criminality proved. On the 
other hand, it is imperative that no innocent person shall be 
convicted and punished. The ideal procedure, therefore, would 
be too firm to permit the escape of a single criminal, and yet 
sufficiently flexible to prevent the prosecution and especially 
the condemnation of any innocent person. But an ideal pro- 
cedure is impossible for the following reasons. 

In the first place, nothing can be proved absolutely, strictly 
speaking, while in many cases the available evidence cannot 
make a decision more than probable. In the second place, the 
endeavor to ascertain the truth is greatly complicated by the 
opposition of social and individual interests in procedure. It is 
always difficult to preserve the balance between the rights of 
the individual and of society, but perhaps nowhere more so than 
in criminal procedure. On the one hand, the protection of 
society against crime requires strict measures of investigation 
and prosecution, which may sometimes result in the prosecution 
of an innocent person. On the other hand, individual liberty 
must be defended and conserved. The condemnation of an 
innocent person is a great shock to public sentiment, not only 



THE FUNCTIONS OF CRIMINAL PROCEDURE 273 

as a violation of justice, but also because each person imagines 
himself or herself in the place of the victim, and realizes in what 
jeopardy every one is placed when such judicial errors are pos- 
sible. However, in spite of these difficulties, it is essential to 
strive for a system of criminal procedure in which the possibility 
of error will be reduced to a minimum. 

Prototypes of courts and judges and of systems of procedure 
existed before the evolution of written law. Among primitive 
peoples are found methods of hearing accusations and judging 
their accuracy, and of imposing penalties. 1 These methods are 
handed down from generation to generation by means of tradi- 
tion. Sometimes the whole clan or tribe acts as the court of 
judgment. Sometimes the elders in the group or other desig- 
nated persons serve as a court. Inasmuch as many offenses 
were contrary to religious beliefs, the priests and other author- 
ized representatives of religion acquired more or less judicial 
power. As the chieftainship grew in authority, the chief ac- 
quired judicial power; and as the kingship evolved, it was the 
tendency for the judicial function to become centered in the king. 

But with the evolution of written law the methods of pro- 
cedure were recorded, and thus obtained a greater degree of 
certainty and fixity. The two principal types of criminal pro- 
cedure which have evolved are the procedure of accusation and 
the procedure of investigation or inquisitorial procedure. The 
systems of criminal procedure of all nations of European civiliza- 
tion are based upon these two fundamental types. 

The Procedure of Accusation 

The procedure of accusation probably is the older of these two 
types of procedure. This type developed out of private retalia- 
tion inflicted by one individual upon another for a wrong suffered. 
Such acts of vengeance created a state of private war between 
individuals. It is not possible to describe in detail the evolution 
from this state to a form of legal procedure. Suffice it to say 
that the legal duel was established in which individuals fought 

1 See L. T. Hobhouse, G. C. Wheeler and M. Ginsberg, The Material 
Cullnre and Social Institutions of the Simpler Peoples, London, 1915, Chap. II, 
entitled "Government and Justice"; G. C. Wheeler, The Tribe, and Inter- 
tribal Relations in Australia, London, 1910, Chap. VIII, entitled "The 
Regulated Settlement of Differences, or Justice." 



274 CRIMINOLOGY 

out their differences and redressed their grievances in accord- 
ance with prescribed rules. But as social and political condi- 
tions became more stable, it was no longer possible to tolerate 
a state of private war. Consequently, the procedure of accusa- 
tion was developed to satisfy private grievances by peaceful legal 
means. Long after most individuals were forced to settle their 
grievances by means of this procedure, the upper classes still 
retained the privilege of the duel, as among the feudal lords who 
settled their differences by means of private war down to the 
end of the Middle Ages, and almost until the present time the 
duel has not been regarded as illegal in certain cases. 

The fundamental theory of the procedure of accusation is 
that the trial is a combat between two individuals, similar to 
its predecessor the duel. It is a legal means of securing ven- 
geance. This is manifested by the early forms of punishment, 
such as composition, wergild, etc. It is not until later that pun- 
ishment is inflicted for the injury done to society. The only 
interest of society at first is that the dispute shall be decided 
and reparation gained by peaceful means. Therefore, the king 
or a judge as the representative of society acts as an arbiter 
between the opposing parties. The accusation must be made 
by a private individual, the injured person or "those of his 
lineage." The judge cannot start a criminal proceeding. It is 
a principle of this type of procedure that there can be no trial 
without an accuser. The examination into the facts of the case 
in this type of procedure is public, oral, and contradictory in 
order to give each party an equal opportunity to state its case. 

This is the procedure of accusation in its original form. As 
the social importance of criminal procedure increased, the pro- 
cedure of accusation began to vary from its original form, which 
was designed for the settlement of private disputes. When 
crimes came to be regarded as injurious to society, as well as to 
the individuals against whom they were committed, it became 
essential that all criminals should be prosecuted. But there was 
danger of impunity to many criminals under the procedure of 
accusation on account of apathy on the part of the accusers. 
In order to start a legal process against a criminal, it was nec- 
essary that the injured party should make an accusation. If 
this accusation was not made, the criminal went unpunished. 

To remedy this failure to prosecute, the popular accusation 



THE FUNCTIONS OF CRIMINAL PROCEDURE 275 

was introduced, by means of which any person could bring 
an accusation for crime committed, even if he was not the in- 
jured party. Laws have also been enacted prohibiting the com- 
pounding of crime, which is a transaction for the suppression of 
criminal pursuit and the cessation of a process already com- 
menced, except with the consent of the court. However, even 
these measures have not proved sufficient, and existing systems 
based upon the procedure of accusation have been forced to 
adopt public prosecution. 

Another danger of the procedure of accusation is that it will 
be used for the extortion of blackmail, or for the satisfaction 
of personal hatred where no grievance exists, or for the satisfac- 
tion of fancied grievances. Measures have been taken against 
this danger, such as the severe punishment of blackmail, pen- 
alties for malicious accusation and prosecution, a remedy at 
civil law by means of a suit for damages in case of prosecution 
upon no reasonable basis of facts. But even with these meas- 
ures, supervision over the prosecution is needed, and has been 
introduced into most systems of criminal procedure. 

The method of examination in the procedure of accusation 
has its defects. Its publicity frequently enables the accused 
to destroy incriminating evidence. The privilege of the accused 
not to testify if he so chooses deprives the court of a valuable 
source of information. The silence of the accused usually de- 
prives society of a powerful weapon against crime, though 
sometimes it does injury to the accused himself, especially when 
he is innocent. 

The Procedure of Investigation 

The procedure of investigation, or inquisitorial procedure, 
seems to have originated in the Roman law, into which it was 
introduced during the latter part of its history. Later it was 
adopted by the Catholic Church and applied by the canonical 
law. In the Middle Ages the Church had a great deal of power, 
and many crimes were prosecuted in the ecclesiastical courts. 
Frequently crimes were prosecuted by the bishops, who acted 
as judges even when no complaint had been brought before 
them. This increased greatly the power of the Church, so that 
in course of time it became the regular procedure. Under the 
Inquisition it was very useful for prosecuting heretics and fore- 



276 CRIMINOLOGY 

ing confessions from them. After being elaborated and greatly 
extended in the ecclesiastical courts it began to be adopted by 
the secular law. In France it was introduced into the penal 
system by means of royal ordinances, such as those of 149S, 
1539, and a famous one on criminal procedure in 1670. In the 
Constitutio Criminalis Carolina, a criminal code promulgated 
in Germany under Charles V in 1532, it was recognized as the 
usual procedure. In this fashion it replaced in large part the 
procedure of accusation on the European Continent, and re- 
mained in force until the French Revolution, when it under- 
went great changes. 

The procedure of investigation, like that of accusation, may 
never have existed in its pure form, but we can readily discern 
its principal features as a form of procedure. The underlying 
theory of this type of procedure is that the pursuit and punish- 
ment of criminals is of the utmost importance for society. Con- 
sequently, society has the right to commence a criminal process. 
This it may do, not necessarily by accusing some one of crime, 
but by making an investigation to determine whether a crime 
has been committed, or whether a certain person has committed 
a crime. 

Therefore the judge, acting not as an arbiter between two 
parties, as in the pure form of the procedure of accusation, 
but as the representative of society, commences such an investi- 
gation, and, if he finds incriminating evidence, prosecutes the 
suspected person. His decision need not be based only on the 
evidence brought before him by the accuser, if there be one, 
and by the prisoner, but the judge himself may collect evidence. 
Theoretically, his position is as impartial as in the procedure 
of accusation. But, as frequently there is no accuser, and as 
he has to conduct the prosecution, the tendency is for the judge 
in the procedure of investigation to become prejudiced against 
the prisoner. This was one of the reasons why this form of 
procedure in the hands of the Catholic Church was a powerful 
weapon against its opponents, and an evil force for injustice 
and persecution, especially as used in the Inquisition. 

The examination in the procedure of investigation is very 
different from the examination in the procedure of accusation. 
It is secret, written, and uncontradictory. The criminal process 
is no longer a contest between two personal adversaries. It is 



THE FUNCTIONS OF CRIMINAL PROCEDURE 277 

the trial of the prisoner before a judge who is supposed to be 
impartial, but who represents society, which is the great op- 
ponent of the prisoner if he is found to be guilty. The process 
is not contradictory, because no opposing parties appear in the 
course of the trial. It is secret because it is in theory only an 
inquiry conducted by the representative of society, and this 
inquiry can be all the more searching if made in secret. It is 
written also because it is an inquiry, the only purpose being to 
gather as much evidence as possible, and to have it on record as 
a basis for judgment. 

The procedure of investigation is a powerful instrument in 
the hands of the central government. The government is, of 
course, expected to use this power solely in the service of justice. 
But the danger always exists that it will be used by those in 
authority as a political weapon to further their own interests, 
and thus misused as it was by the Church. Furthermore, it is 
dangerous to put the power of prosecution and that of judgment 
in the same hands. Strictly speaking, there is no such thing 
as prosecution in the procedure of investigation, the trial being 
only an inquiry into the facts. But inasmuch as social interests 
are at stake, and as society is, in a sense, the opponent of the 
prisoner, the judge, as the representative of society, becomes 
the prosecutor. This tends to bias him against the prisoner, 
and thus unfits him for judging impartially. 

The method of securing and presenting the evidence in the 
procedure of investigation has certain faults. The power of 
the judge in accepting and rejecting evidence is too arbitrary. 
If he begins his examination with a prejudice in favor of one 
side, he is likely to find the evidence in favor of that side, and 
to ignore the other. In fact, judicial functions are hardly com- 
patible with an active investigation. In order that all the evi- 
dence in favor of a side be brought to light, it should be gathered 
and presented by some one interested in that side. It is hardly 
possible for one person to present all the evidence on both sides. 
While gathering the evidence he is likely to become biased in 
favor of one side or the other. In order to arrive at an impartial 
decision, the judge should come with a fresh and unbiased mind 
to a consideration of the evidence after it has been carefully 
prepared by others, and is then presented to him by the repre- 
sentatives of both sides. 



278 CRIMINOLOGY 

The secrecy and uncontradictory nature of the procedure of 
investigation tend to limit the power of the prisoner to defend 
himself. His inability to contradict prevents him from replying 
directly to and explaining evidence offered against him while 
its impression upon the mind of the judge is still fresh. Still 
more is he hampered by the secrecy of the examination, which 
frequently prevents him from knowing what evidence has been 
found, so that he fails to reply to it when he is given the oppor- 
tunity to testify. Consequently, while the principal object of 
the procedure of investigation is to protect society, it tends in 
practise to discriminate against the prisoner, and thus violates 
the rights of the individual. 

English and French Criminal Procedure 

The principal example of the procedure of accusation is the 
English system of procedure, though it has varied greatly from 
the pure form of this type of procedure. In theory, at least, the 
prosecution is private, but it is now done in the name of the 
king, which is a recognition of the interests of society in the 
prosecution, and in practise there is a great deal of public 
prosecution. " The trial is conducted by the two opposing parties, 
and is public, oral, and contradictory. The judge acts as an 
arbiter, intervening only when questions arise as to how the 
process is to be conducted. From the decisions of judges re- 
garding evidence has grown the English law of evidence, which 
is the largest body of rules regarding evidence in any system of 
law. The decision regarding guilt is made by a jury, which is a 
judicial institution developed by the procedure of accusation. 
Its underlying theory is that a man is to be judged by his peers, 
and it is a safeguard against the judges who, as representatives 
of the government, may wrongly prosecute and condemn in the 
name of society. 

The leading example of the procedure of investigation is the 
French procedure. Since the French Revolution the French 
procedure has more or less influenced every Continental system 
of procedure. It goes without saying that it varies considerably 
from the pure form of this type of procedure. In France the 
preliminary examination of the accused is made by a magistrate 
called the juge d' instruction. This examination is almost en- 
tirely secret, only the counsel for the prisoner being present. 



THE FUNCTIONS OF CRIMINAL PROCEDURE 279 

It is absolutely uncontradictory and a written record is made. 
The functions of the juge d? instruction constitute a survival of 
the Inquisition, and his position is similar to that of the Grand 
Inquisitor. The record of this examination in the form of deposi- 
tions of witnesses is sent to the judge who is to preside at the 
trial. As a result of reading these depositions, this judge is liable 
to acquire a hostile attitude towards the prisoner. 

The presentation of evidence is oral and public. But it is 
almost entirely uncontradictory, since the questioning of wit- 
nesses is done by the judge and there is no cross-examination. 
The rules of evidence are few and elementary, so that the judge 
is almost unrestricted in examining witnesses. The prosecuting 
is done by a body of public officials called the minister e publique. 
The principal contradictory feature in the trial is furnished by 
the speeches of the procureur de la Republique, or public pros- 
ecutor, and the counsel for the defense, after the examination of 
witnesses. After the French Revolution the jury was introduced 
into the procedure, and was a modification tending towards the 
procedure of accusation. 

Combination of the Procedures of Accusation and In- 
vestigation 

The procedure of accusation is based on the primitive theory 
of personal vengeance. The underlying theory of the procedure 
of investigation is more advanced, since it displays a higher 
conception of the function of penal procedure. But in practise 
it tends to violate individual rights in certain respects. To 
correct this fault in the procedure of investigation it is necessary 
to look to the procedure of accusation, which furnishes more 
safeguards to individual rights. The best procedure, therefore, 
must adopt the theoretical basis of the procedure of investiga- 
tion, namely, the protection of society as the purpose of penal 
treatment, and those features of both types of procedure which 
will put this theory into practise. This has been the actual 
tendency in existing systems of procedure. The primitive theory 
of vengeance as a basis for penal treatment has been dying out, 
and is being replaced by that of the protection of society, 
while the systems based upon the two types of procedure have 
been rapidly approaching each other in practise. 



280 CRIMINOLOGY 

, The procedure of accusation leaves the prosecution of crim- 
inals to the injured parties. But this results in impunity for 
many criminals. Indifference, threats, bribes, and other con- 
siderations keep people from accusing and prosecuting. A first 
step towards remedying this failure of criminal justice was the 
popular accusation by means of which every citizen could accuse 
any other person of a crime. Montesquieu said that the popular 
accusation is suited to republics, where patriotism is strong, but 
not to monarchies where this sentiment is weak. 1 But even in 
republics patriotism is not sufficiently strong to induce citizens 
to take the time and trouble to accuse, and to take the risk of 
making a false accusation. Therefore a public agency for the 
pursuit and prosecution of criminals is absolutely necessary. 

In the procedure of investigation there is no prosecution, 
strictly speaking. The judge merely conducts an inquiry. But 
in practise it is his tendency, as the representative of social 
interests, to regard the prisoner as guilty, and therefore to 
prosecute. In order to remedy this evil, official or public pros- 
ecution was introduced into this form of procedure. Public 
prosecution is a combination of the two forms of procedure. It 
is prosecution by a person other than the judge, as in the pro- 
cedure of accusation, but it is prosecution by a representative of 
society, and therefore harmonizes with the theory of the pro- 
cedure of investigation. So that in the development of the 
method of prosecution the tendency has been towards the theory 
of the procedure of investigation, modified in practise, however, 
by the procedure of accusation. 

Public prosecution brought with it the contradictory element, 
for it necessitated defense for the accused person. The con- 
tradictory debate aids greatly in arriving at a final decision. 
As a general rule, the judge should have nothing to do with the 
gathering and presentation of evidence. The evidence should be 
gathered by others, and then placed before him in the manner 
best calculated to reveal its significance. For this reason, the 
European Continental method, in which the judge questions the 
witnesses freely, thus conducting the presentation of evidence for 
both sides, is objectionable, even though it may somewhat 
hasten the trial. 

It is impossible for a man to keep in mind all of the 
1 Quoted by C. Beccaria, Crimes and Punishments, Chap. XV. 



THE FUNCTIONS OF CRIMINAL PROCEDURE 281 

considerations on both sides, and to bring out all of the signifi- 
cant points in the evidence. In order to accomplish this 
end, the examination of witnesses should be conducted by 
representatives of both sides, each bearing in mind the evidence 
favorable to his own side, and bringing it out in the presentation 
of the testimony. Each of these representatives would also be 
watching for contradictions and discrepancies in the evidence 
offered by the other side, and could expose them much more 
readily than the judge, who would be endeavoring to keep in 
mind at the same time the important points on both sides. If 
it were possible for one person to detect and expose these errors 
as readily as two persons, the procedure of investigation would 
be the best fitted for a criminal trial. But inasmuch as this is a 
mental impossibility, the system of examination and cross- 
examination and of the contradictory debate which has been 
developed by the procedure of accusation is the best fitted for 
the presentation of evidence, and for arriving at a final decision. 

The Reform of Criminal Procedure 

The following problems must be studied with respect to 
criminal procedure. In the first place, the existing system has 
many defects which must be remedied. In the second place, a 
somewhat new system must be developed which can utilize the 
data of the modern science of criminology. 

The existing procedure must be reformed because many trials 
are prolonged far beyond a reasonable length, which is greatly 
to the inconvenience of the persons involved, and causes much 
expense to the state. There is reason to believe that some 
guilty persons escape punishment owing to unnecessary tech- 
nicalities in the procedure. Such a condition of affairs is sure to 
stimulate an increase of crime, and it has undoubtedly done so 
to a certain extent in this country. 

A simplification of the existing procedure is needed. Its 
present complexity is due largely to the effort to protect the 
accused, which is justifiable up to a certain point, because it is of 
the utmost importance that no innocent person shall be con- 
victed. But when carried beyond this point it becomes a shield 
and cloak for guilty persons, under which cloak some of the 
guilty will escape punishment. This has happened in numerous 



282 CRIMINOLOGY 

cases where a conviction has been reversed because of the 
omission of a word in an indictment or a similar unimportant 
error. These miscarriages of justice have caused a lack of 
confidence in the courts, have increased the amount of crime, 
and have encouraged the rise of lynch law. In order to avoid 
such miscarriages of justice the forms for the indictment and the 
information should be made as brief and simple as possible, so 
as to reduce the possibility of technical errors to a minimum. 
This has already been accomplished in England, and has in- 
creased materially the effectiveness of the criminal law in that 
country. 

Furthermore, the prosecution of crime would be much simpler 
if most of the felonious offenses were prosecuted by means of an 
information prepared by a prosecuting officer instead of an in- 
dictment. Thus would be swept away the cumbersome method 
of indicting by grand jury. In fact, this reform has already been 
effected in several states, and should be adopted by all. It may 
appear as if the abolition of the grand jury removes an important 
protection for the innocent. But sufficient protection will re- 
main. In the first place, in every case there should be a pre- 
liminary examination by an examining magistrate. In the sec- 
ond place, if the case is very weak, the prosecuting officer will be 
almost certain to dismiss rather than take the chances of defeat 
in a trial. 

The grand jury has been regarded with much veneration 
in the past. But the examinations made by it are so brief 
and superficial that it is doubtful if it has ever been efficient 
in performing the function of selecting the cases to be tried. 
This work can be achieved quite as efficiently and much more 
promptly by examining magistrates and prosecuting officers. 
The abolition of the grand jury would hasten procedure, because 
the necessity of waiting for an examination by the grand jury 
has frequently resulted in long delays in bringing cases to trial. 

In the English common law the accused was not required to 
testify. This feature of the law was supposed to be for the 
benefit of the accused, because if he did not testify he could not 
incriminate himself. Recently the accused has testified if he 
chose to do so, but has had the right to refuse, and the law has 
provided that such refusal should not have any weight with the 
jury and the judge. It is evident that the testimony of the ac- 



THE FUNCTIONS OF CRIMINAL PROCEDURE 283 

cused has much' value in every case, and in the interests of jus- 
tice it should be introduced. So that the accused should be 
required to testify, or, at any rate, if permitted to refuse, such 
refusal should have weight with the jury and the judge. It is 
doubtful if this change would remove any justifiable protection 
from the accused, for if he is innocent his testimony should help 
rather than injure his cause, while if he is guilty there is no reason 
why he should not incriminate himself. 

In the common law there developed for the protection of the 
accused the presumption of innocence. On the European 
Continent there has never been any presumption either of 
innocence or of guilt. The common law presumption of inno- 
cence has strengthened too much the position of the accused, and 
has made it too difficult to convict the guilty. This presumption 
should be abolished, at least in so far as it influences procedure, 
from the theory of the law. 

The right of appeal is greatly abused in this country. A large 
percentage of criminal as well as of civil cases are appealed, 
and many of them are reversed upon purely technical grounds 
which do not affect the merits of the case. Many of these ap- 
peals are on errors in rulings on rules of order which should not 
ordinarily be reviewable, because they do not usually affect, 
the substantial points at issue. But in most jurisdictions the 
rules of procedure, based largely upon previous decisions, are 
of such a nature that any of these rulings may be reviewed, 
and in many cases they furnish a basis for a reversal. Already 
in a few jurisdictions the rules of procedure have been so changed, 
or appellate courts have made such decisions, that this is no 
longer possible, and the same should become true over the whole 
country. In England there was no criminal court of appeal 
until 1907, and even now appeal is not a matter of right, but 
can be made only when the trial court thinks that the merits 
of the case are involved. 

These criticisms indicate some of the desirable reforms in the 
existing procedure. But these reforms will not develop a pro- 
cedure which can make use of scientific data. These facts may 
be applied in gathering evidence, testing the accuracy of testi- 
mony, measuring the penal responsibility of the accused, etc. 
The most important reforms in criminal procedure are those 
which will make possible the utilization of these scientific facts. 



284 CRIMINOLOGY 

After a conviction has resulted from a trial it becomes neces- 
sary to decide upon the penal treatment to be inflicted upon the 
criminal. Under the old system of fixed penalties this was an 
easy thing for the judge to do. But the present tendency is 
towards the individualization of punishment, that is to say, 
towards adjusting the penal treatment to the character of the 
criminal. The judges should, therefore, be well acquainted with 
the nature of criminals. This requires a knowledge of the differ- 
ent types of criminals and of the social causes of crime which 
can be acquired only by means of special study. 

Furthermore, the decision of the judge as to the penal treat- 
ment to be inflicted would in many cases be tentative. For 
example, if an indeterminate sentence was imposed, it would 
have to be decided later when this sentence is to terminate. 
At present this is done by prison officials. But it would probably 
be desirable that the judges also should participate in these 
decisions, thus bringing the courts and the penal institutions 
into cooperation in deciding these questions. It might be pos- 
sible to establish a system of the periodic revision of sentences 
by the judges, so that each judge could revize from time to time 
the sentence of each person sentenced by him, so as to decide 
when the sentence should be terminated or whether the penal 
treatment should be changed in its character. These revisions 
of sentences would be made upon the advice and with the co- 
operation of the prison officials. If such a system of the periodic 
revision of sentences were introduced, the function of criminal 
procedure would be extended through the judge beyond the 
time of the conviction and original sentence to the end of the 
penal treatment of the criminal. 



CHAPTER XVIII 
THE SCIENTIFIC PRINCIPLES OF EVIDENCE 

Superstitious methods of securing proof: the wager; the ordeal; torture — 
The English law of evidence — Medical jurisprudence: the evils of 
contradictory medical testimony; the training of medico-legal experts — 
Expert testimony — Abolition of the coroner's office — The oath — 
The psychological examination of witnesses: the causes of erroneous 
testimony; the psychological expert — The scientific stage of evidence. 

The object of a criminal trial is to gather, examine, and 
weigh evidence. Consequently, the larger part of the mechan- 
ism of criminal procedure is devoted to this work, and the sub- 
ject of central importance in the study of the rules of procedure 
is evidence. 

Superstitious Methods of Securing Proof 

Various methods of securing and judging evidence have been 
used in the past. For example, the aid of spiritual beings has 
frequently been invoked to furnish proof of guilt or innocence. 
Among these religious methods are the wager of law, the wager 
of battle, and the ordeal. In the wager of law the proof was 
secured by means of compurgation. If the requisite number of 
compurgators or conjurators swore that they believed the ac- 
cused on his oath, his plea of innocence was accepted as true. 
So that the wager of law was primarily a test of the reputation 
of the accused among his friends and neighbors. But the solem- 
nity of the oath in which the deity was invoked gave to this 
method a religious character. The oath is still used as a test of 
truthfulness. 

The wager of battle was applied by means of a judicial battle 
sanctioned and witnessed by the court. This battle took place 
between the accuser and the accused, or between their repre- 
sentatives, and God was supposed to give the victory to the 
side which was in the right. 

The ordeal was the superstitious and religious method par 



286 CRIMINOLOGY 

excellence of securing evidence and proof. If the accused was 
innocent, the deity was supposed to bring him successfully 
through the ordeal. If the accused was guilty, the deity was 
supposed to make him fail in the ordeal. Thus in the ordeal by 
water if the accused was thrown into water and sank and 
drowned, in some places it was regarded as proof that he was 
guilty, for otherwise God would have saved him. If he floated 
and survived, it was positive proof that the divine power was 
saving an innocent person. On the other hand, in other places 
sinking was regarded as proof of innocence, and floating as proof 
of guilt. The ordeal was inflicted by many means, such as boil- 
ing water, red-hot iron, fire, cold water, the cross, the corsnaed 
(consecrated bread or cheese), the eucharist, poison, the bier- 
right (the body of the victim bleeds on the approach of the mur- 
derer), by lot, etc. 1 

The use of torture was developed to a high degree in the ec- 
clesiastical courts, especially under the Inquisition. Then it 
was, unfortunately, adopted to a certain extent by the secular 
courts. In the ecclesiastical courts torture had religious sig- 
nificance. In the secular courts it had little if any religious 
significance, but was used because it furnished what was sup- 
posed to be absolute proof of guilt through the confession of the 
accused. Torture has been abolished by law in all civilized 
countries, but it is still used illegally sometimes, as in the "third 
degree" methods of the police. 

The English Law of Evidence 

The law of evidence was developed more fully in the English 
procedure than in other systems of procedure. This was due to 
the fact that the English jury was originally a body of witnesses 
who gradually became judges of fact. Inasmuch as jurors are 
comparatively ignorant of law and procedure, and are inex- 
perienced in hearing and judging evidence, the judges found it 
necessary to regulate the kinds of evidence to be presented before 
the jury, and also to instruct the jurors to a certain extent as to 
the manner in which they were to judge this evidence. In other 

1 For descriptions of all of these religious and superstitious methods of 
securing evidence and proof, see, H. C. Lea, Superstition and Force, Essays 
on the wager of law, the wager of battle, the ordeal, torture, 3d ed., Philadelphia, 
1878. 



THE SCIENTIFIC PRINCIPLES OE EVIDENCE 287 

words, it was necessary for the judges to protect the jury as 
much as possible against the mistakes due to its ignorance and 
inexperience. 

In this fashion there evolved a body of more or less uniform 
rules of evidence. As the independence of the judges increased, 
these rules became more and more authoritative, until they were 
as binding as the common or statute law. There is, therefore, 
an intimate connection between the English law of evidence 
and the jury. The comparatively undeveloped state of the law 
of evidence in the European Continental procedure is easily 
accounted for by the absence of the jury on the Continent until 
after the French Revolution. 

Evidence is classified in several different ways in the English 
law of evidence. Perhaps the most important classification is 
that of direct evidence, and indirect, inferential, or circumstantial 
evidence. Direct evidence is derived from actual observation, 
or the testimony of persons who have a knowledge derived from 
actual observation. Indirect evidence is derived by inference 
from other facts which have been actually observed, or are 
established by testimony. Indirect or circumstantial evidence 
is admissible, and may be as conclusive as direct evidence, but 
the tendency is to rate circumstantial evidence as having less 
weight than direct evidence. 

Evidence is also classified as consisting of material or of rel- 
evant facts. A material fact is one which, when proved, decides 
one of the questions in the issue to be considered and adjudicated 
by the jury. A relevant fact is one from which, when proved, a 
material fact may be legally inferred. Facts which are neither 
material nor relevant are excluded from the consideration of the 
jury, and evidence concerning them is inadmissible. 

Facts judicially noticed are certain facts which are presumed 
by the law to be personally known to the judge and jury. These 
are classified as political, legal and official facts, public history, 
natural history, and the vernacular language. The courts take 
judicial notice of these facts, and regard them as established 
without further proof. 

Evidence is classified with respect to its form as written and 
oral. Written evidence consists of public and judicial records, 
deeds, bonds, etc. It is admissible whenever the fact in ques- 
tion is the existence of the document itself, or whenever the 



288 CRIMINOLOGY 

contents of the document are legally sufficient to establish a 
material or relevant fact. Oral evidence consists of the viva 
voce testimony of a witness who has taken the oath. It is ad- 
missible only when the witness can testify from personal knowl- 
edge as to the existence or non-existence of a material or rel- 
evant fact, or when he is called to give expert testimony. 

Evidence with respect to a written document is classified as 
primary and secondary. The document itself is primary ev- 
idence of its existence and contents. Copies and oral evidence 
with regard to it are secondary evidence, and secondary ev- 
idence is inadmissible whenever primary evidence can be pro- 
duced. 

A witness is not allowed to testify to statements made to him 
or in his presence by other persons. There are a few exceptions 
to this rule which there is not the space to state here. The 
exclusion of hearsay evidence is a distinctive feature of the 
English law of evidence. 

No evidence against the character of the accused can be 
given, except in reply to favorable evidence as to his character 
which has already been introduced. 

The voluntary confession of the accused, when made without 
fear or hope of favor, is admissible as evidence against him. 

Any person who understands and recognizes the obligations of 
an oath is a competent witness, unless disqualified by circum- 
stances specified by law. In the past those who had been con- 
victed of certain infamous crimes, and those who had an interest 
in the case were disqualified, but at the present time these cir- 
cumstances are regarded as affecting the credibility rather than 
the competency of a witness. 

The admissibility of evidence is to be decided by the judge 
according to the law of evidence, or, when the law does not 
specify, according to his own discretion. 

The sufficiency and weight of evidence are usually decided by 
the jury. From certain classes of facts, however, the law con- 
clusively infers the existence or non-existence of other facts, 
and the jury is therefore compelled to accept this inference with 
respect to the latter facts whenever the former facts have been 
proved. From certain other classes of facts the law infers, but 
not conclusively, the existence or non-existence of other facts, 
and the jury is compelled to accept this inference with respect 



THE SCIENTIFIC PRINCIPLES t>F EVIDENCE 289 

to the latter facts only when the former facts have been proved, 
and when the inference, which the law usually derives therefrom, 
has not been rebutted. These inferences are called presumptions 
of the law. 

The presumption of the law that the accused is innocent until 
proved to be guilty has a good deal of significance for the English 
law of evidence. It results in the principle that guilt must be 
proved beyond a reasonable doubt, and that the evidence must 
be of such a nature as to exclude every reasonable hypothesis 
but guilt. Furthermore, the corpus delicti (the body of the 
offense or the essence of the crime) must be established by ev- 
idence other than the extra-judicial admissions of the accused. 

Leading questions, suggesting the desired answer to the wit- 
ness, may be employed only in the cross-examination. 

The burden of proof rests on the affirmative side, which may 
be the prosecution or the defense according to the nature of the 
issue. 

When a specific intent is alleged in the indictment, it must be 
proved as laid. 

Formerly the accused could not testify. But for some time 
past it has been permitted in American procedure, and the 
English "Criminal Evidence Act" of 1898 made it possible in 
English courts. If, however, the accused offers his testimony, 
the opposing side has the privilege of asking questions regarding 
his conduct and character which could not otherwise be asked. 

These rules of evidence are characterized by a certain amount 
of arbitrariness and rigidity which are in some measure inev- 
itable in any law of evidence. The presence of the jury has 
emphasized these traits in the English law of evidence. 1 But 

1 A well-known writer on this subject has characterized the English law 
of evidence as follows: "The characteristic features of the English common 
law system of judicial evidence, like those of every other system, are essen- 
tially connected with the constitution of the tribunal by which it is ad- 
ministered, and may be stated as consisting of three great principles: 1. The 
admissibility of evidence is matter of law, but the weight or value of evi- 
dence is matter of fact. 2. Matters of law, including the admissibility of 
evidence, are proper to be determined by a. fixed, matters of fact by a casual, 
tribunal; but this is a principle which found little favour with the Court of 
Chancery, and has gradually become a less integral part of the whole Eng- 
lish system. 3. In determining the admissibility of evidence, the produc- 
tion of the best evidence should be exacted." (W. M. Best, The Principles 
of the Law of Evidence, London, 1906, 10th ed., p. 66.) 



290 CRIMINOLOGY 

inasmuch as each criminal case and each individual witness is 
more or less peculiar, the law of evidence should be as flexible 
as possible. In order to attain this flexibility it must be based 
as far as possible upon scientific principles. 

Medical Jurisprudence 

Scientific methods have already been applied to a certain 
extent in medical jurisprudence and in the use of expert tes- 
timony. Medical jurisprudence uses testimony from medico- 
legal experts. Information about the human body is frequently 
needed. It is necessary to examine cadavers, and victims of 
attacks against the person, such as wounds by firearms or other 
weapons, strangulation, precipitation from an elevation, asphyx- 
iation, poisoning, rape, etc. Closely connected with this sort of 
testimony is evidence from observers with the microscope who 
examine traces of blood or of sperm, excrements, hairs, imprints 
of hands or of feet, etc. 

Another important function of medico-legal experts is to 
examine accused persons, and to give testimony with regard to 
certain diseases, such as epilepsy, insanity, etc., which may 
cause irresponsibility. The importance of having medical 
testimony in such cases can hardly be questioned, since no 
judge or jury can be expected to have any special knowledge of 
these diseases. The practical questions, therefore, are as to 
how a medico-legal expert is to testify, and what influence his 
testimony is to have upon the decision. 

A medico-legal expert is usually required to answer yes or no 
to the question as to whether or not the accused is insane, in 
spite of the fact that an absolute distinction cannot be drawn 
between insanity or sanity, any more than it can be drawn be- 
tween a disease of any part of the body and a healthy condition 
of that part. There are degrees in the extent to which the mind 
can be diseased, and a variety of ways in which it may be dis- 
eased. So that it is essential that the medico-legal expert should 
be free to diagnose the condition of the accused as he would 
any other case, and not be forced to give a categorical answer. 

Closely connected with this form of answer has been the ques- 
tion of penal responsibility. A categorical answer to this ques- 
tion has been required because upon this answer has usually 



THE SCIENTIFIC PRINCIPLES OF EVIDENCE 29I 

depended the decision of the judge or jury as to the responsibility 
of the accused. But this practise reveals a simple and naive 
conception of responsibility which fails to recognize that penal 
responsibility should vary not only according to the degree and 
nature of the disease, but also according to psychological and 
social considerations. So that the medico-legal expert, while 
testifying about a purely medical matter, is also deciding a 
question which is in part psychological and social. 

The reply to the first question, as to how a medico-legal ex- 
pert is to testify, is that he should be permitted to diagnose the 
condition of the accused, as he would diagnose any other case. 
The reply to the second question, as to the influence his testi- 
mony is to have upon the decision, is not so simple. Even though 
his testimony is purely medical, it frequently has an influence 
upon the decision of a question which is partly psychological and 
social, and this obviously is wrong. 

At the present time the question as to whether or not a person 
accused of crime is insane is frequently decided by a judge or 
jury. This is manifestly absurd, since a judge or jury can have 
no special knowledge of insanity or any other disease. The ques- 
tion as to whether a defendant is diseased, and if so as to the 
nature and degree of his disease, whether it be insanity, epilepsy, 
etc., should be left entirely to an expert, or to a commission or 
jury of experts. 

But while the medico-legal expert should have the power of 
deciding what is the pathological condition of the defendant, it is 
not necessary that he should make the final decision in any case. 
Psychological and social considerations also must be taken into 
account, as well as medical considerations. While the medico- 
legal expert should have the function of proving the medical 
facts, these facts should be weighed and judged in their relation 
to the other pertinent facts by a judge who has had anthropolog- 
ical, psychological, and sociological training. 

The usual custom at present is for each side to summon 
medico-legal experts. It goes without saying that these experts 
are expected to search only for the truth, and to give unbiased 
testimony. But it is natural and almost inevitable that an 
expert should be influenced by the side which has called him, 
since he desires to please that side in order to be called again and 
earn the fees. When, therefore, there is any doubt, it is easy for 



292 CRIMINOLOGY 

the expert to decide for his own side. Consequently, a public 
prosecutor will keep on hand experts who will always or nearly 
always testify against insanity. These experts are, therefore, 
prosecutors like the public prosecutor himself. 

This contradictory system of expert testimony is probably due 
to the fact that experts do not always agree. It has, therefore, 
been considered necessary to have a number of expert opinions 
presented, and then to have the decision as to the question sub- 
mitted to the experts made by another authority. But even 
though experts who know something about the question at issue 
do not always agree, and sometimes make mistakes; there is no 
reason for leaving the decision to lawyers and jurors who know 
nothing about the question involved. The decision of these 
medical questions should be left entirely to the medico-legal 
expert. His role should be an impartial one, namely, the func- 
tion of examining the medical facts and judging them like a 
judge. Hence to make expert testimony contradictory is to 
make the judgment contradictory, which is a contradiction in 
terms. 

Several methods of choosing experts under the existing system 
of procedure may be suggested which would make the experts 
non-partizan. Inasmuch as the functions of experts are like 
those of judges, they might be chosen like jurors from a list 
prepared beforehand, the right of challenging being given to both 
sides. Or the two sides could choose from this list in concur- 
rence. When a specialist not on the list is needed, he could be 
designated by the judge, while each side would have the right to 
challenge. 

But better still would be an organized system of medical 
jurisprudence. Such a system has already been partially devel- 
oped in Germany. In each province there is a college of experts 
to which appeal can be made from the decision of an expert at a 
court of first instance. At the capital there is a scientific deputa- 
tion which acts as a court of final appeal. In order to establish a 
system of medical jurisprudence there should be one or more 
professional experts attached to each court. There should be 
courts of appeal made up of the ablest experts. Then if there is a 
difference of opinion among the experts, or the decision in a case 
is contested, the question at issue can be referred to this court of 
appeal for decision. 



THE SCIENTIFIC PRINCIPLES OF EVIDENCE 293 

A corps of professional experts is needed for a system of med- 
ical jurisprudence. At present the medico-legal experts usually 
are physicians without any special training. Some of the mis- 
takes they make are due to the fact that legal medicine is not yet 
highly developed. But many of their mistakes are due to a lack 
of specialized knowledge. This knowledge would save them 
from errors of omission due to failure to take note of certain 
phenomena, and from errors of commission in misinterpreting 
the significance of other phenomena. In order to develop a 
corps of professional experts it will be necessary to make the 
profession of medico-legal expert a regular career with a remu- 
neration sufficiently large to attract able medical students. 
These students would specialize in the courses in legal medicine 
given in the medical schools. Special courses in legal medicine 
are already being given in the medical schools at Lyons and 
Paris in France, at Lausanne in Switzerland, and elsewhere in 
Europe. It is possible that in course of time schools of legal 
medicine will be established. 

In addition to this training in the schools there should be 
clinics in prisons, insane asylums, and morgues. Medico-legal 
laboratories should be established in connection with the courts 
of appeal or in other central places where evidence could be 
examined and analyzed, where students could obtain clinical 
experience, and where experiments could be carried on. Medico- 
legal data should be accumulated and preserved in museums in 
connection with these laboratories. Rules for the examination 
of cases should be established, and forms for keeping the records 
of cases uniformly should be devized. By all of these means the 
science of legal medicine would be developed very rapidly. 

Expert Testimony 

So far I have been discussing medical jurisprudence alone. 
But everything which has been said applies to all forms of 
scientific evidence and of expert testimony. For example, there 
is great need for the application of psychological and psychiatri- 
cal knowledge in criminal cases. A corps of trained psychologists 
and psychiatrists should be developed to furnish this knowledge 
in the same manner as the medico-legal experts, and to decide 
all technical questions as to amentia, insanity, neuroses, mental 



294 . CRIMINOLOGY 

responsibility, etc. In fact, many of the functions now being 
performed by the medico-legal experts should be transferred to 
the psychologists and psychiatrists. 

Expert testimony is given by chemists, physicists, phar- 
macists, mineralogists, zoologists, botanists, etc. It is given 
with regard to firearms, handwriting, photography, etc. Expert 
testimony can sometimes be furnished by an ignorant and simple- 
minded person about a subject which is not a matter of general 
knowledge. In fact, it would be impossible to enumerate all of 
the subjects about which expert testimony may be required. 
Almost any conceivable subject might at some time or other 
become involved in a question at issue in a criminal court. 

Scientific evidence and expert testimony can be used not only 
to aid in ascertaining the facts as to whether a crime has been 
committed and as to who has committed it, but also to aid in 
sentencing the convicted criminal. Anatomical, physiological, 
psychological, and sociological evidence may be used to aid in 
deciding wisely as to the best sort of penal treatment for each 
criminal, thus making possible a scientific system of the in- 
dividualization of punishment. Much of this evidence can be 
furnished by the medico-legal, the psychological, and the 
psychiatrical experts. 

Expert testimony will always be a superior source of informa- 
tion at the disposal of justice, a means of securing scientific 
evidence of which more and more use should be made. Judges 
are not competent to decide technical questions. But while a 
judge cannot be expected to have all of this technical knowledge, 
he should have enough general knowledge to know when expert 
testimony should be used. Courses should, therefore, be given 
in law schools acquainting those who may become judges with 
the general nature of expert testimony, and with the occasions 
on which such testimony is needed. 

Abolition of the Coroner's Office 

When a system of medical jurisprudence has been established 
it will be easy to abolish the coroner's office. This institution 
for examining into the causes of violent and suspicious deaths 
originated in England. In many of the states the coroner is 
elected. Frequently he is neither lawyer nor physician, not- 



THE SCIENTIFIC PRINCIPLES OF EVIDENCE 295 

withstanding the fact that he has legal functions to perform, and 
has to judge medical questions. 1 The coroner's examination be- 
comes all the more absurd when a lay jury is summoned to 
assist in the examination, for the jurors are even less competent 
to judge the evidence placed before them than the coroner. So 
that the work of the coroner is usually grotesquely inadequate 
and erroneous, even when he is aided by medical assistants. 

About forty years ago the coroner's office was abolished in 
Massachusetts, and a board of medical examiners was appointed 
to make the examinations previously made by the coroner. It is 
evident that these examinations should be made by competent 
medical authorities, and that their decisions upon these medical 
matters should be final. The legal functions of the coroners 
should be transferred to the criminal courts in which will be 
tried those accused of causing the deaths investigated by the 
medical examiners. In this fashion the rights of the accused will 
be adequately safeguarded. 

The medico-legal experts in the system of medical juris- 
prudence described above would be competent to make these 
examinations. Furthermore, the medico-legal laboratories and 
museums would aid greatly in this work, while the records of 
the autopsies made by the experts would furnish valuable data 
to legal medicine. 

The Oath 

But most of the evidence in a criminal trial will ordinarily 
be furnished by witnesses who are neither scientists nor experts, 
but who have chanced to observe events and circumstances 
connected with the question at issue. Science may, however, 
be applied in testing the veracity of this testimony. The 

1 In the course of an investigation of the coroner's office in New York 
City made in 19 14 by the Commissioner of Accounts it was found that there 
had been sixty-five coroners since the consolidation of the city of whom 
nineteen were physicians, eight were undertakers, seven were politicians, 
six were real estate dealers, two were saloon-keepers, two were plumbers, 
etc. The report of this investigation recommended the abolition of the 
coroner's office and the appointment of a board of medical examiners. 
(Commissioner L. M. Wallstein, Report on Special Examination of the Ac- 
counts and Methods of the Office of Coroner in the City of New York, 1915.) 
These recommendations were adopted in legislation which went into effect 
on January 1, 1918. 



296 CRIMINOLOGY 

standards according to which the value of testimony has been 
judged have usually been very naive. The oath has generally 
been regarded as a sufficient guarantee of the veracity of testi- 
mony. It is true that the oath may furnish some indication of 
the intention of the witness to tell the truth, but it obviously can- 
not confer in the slightest degree the ability to tell the truth. 
A judge cannot safely be assured that the witness is veracious 
if he has no other evidence than the oath of the truth of the 
testimony of the witness. 
/ The oath is useless for truthful witnesses because they will 
endeavor to tell the truth anyway. It is ineffective for untruth- 
ful witnesses, unless religious superstition scares them into an 
attempt to tell the truth. The compulsory oath is incompatible 
with liberty of conscience and of religious belief. This is some- 
times recognized by the law, as, for example, in the Swiss con- 
stitution which states that no one shall be forced to perform a 
religious act, and that therefore no one shall be forced to take 
an oath. To require an oath of the accused that he is innocent 
is especially absurd and unjustifiable. The canonical law in 
creating the inquisitorial procedure in the thirteenth century 
submitted the accused to the oath, and this custom was intro- 
duced into the law of almost all of Europe, the principal excep- 
tion being England. The oath in this case necessitates the per- 
jury of the guilty accused if he proposes to stand trial for his 
crime. 

The oath may, therefore, secure a certain amount of subjective 
truth in the sense of increasing the intention of the witness to 
tell the truth, but little if any objective truth in the sense of 
increasing the degree of concurrence of his testimony with the 
facts. That is to say, by the threat of punishment which its 
religious character implies the oath may remove the intention 
to hide the truth, but this does not necessarily increase the ca- 
pacity for telling the truth. The ancient Romans apparently 
regarded the oath as guaranteeing subjective truth only, for 
Mommsen tells us that in the Roman criminal procedure wit- 
nesses swore to what they thought they had seen or heard, and 
not to what they knew. In other words, it was an oath of good 
faith. 

The oath may help a little to secure objective truth by im- 
pressing upon witnesses the solemnity of the occasion, and thus 



THE SCIENTIFIC PRINCIPLES OF EVIDENCE 297 

increasing their attentiveness. But attentiveness alone cannot 
do much to strengthen the memory, so that the utility of the 
oath for securing objective truth is slight indeed. If then the 
oath is to be used at all, its greatest efficacy will be in securing 
subjective truth from religious persons who are so untruthful 
as to give false testimony knowingly, if not prevented by the 
threat of punishment implied in the oath. For the irreligious 
the oath is not only useless but unjust, because it is an imposi- 
tion upon their freedom of belief and action, and in its place 
should be substituted a simple affirmation of intention to tell 
the truth. 

The Psychological Examination of Witnesses 

During the last few decades experimental psychology has been 
greatly developed. Much study has been devoted to the re- 
liability of memory. It is evident that when the witness in- 
tends to tell the truth the accuracy of testimony will depend 
upon the memory, and that the causes of erroneous testimony 
are to be found in defects of the memory. 

The primary cause of error may be an abnormal condition of 
the sensory organs. These organs may be congenitally unable 
to convey correct impressions of occurrences external to the 
body. Or they may be incapacitated by nervous diseases such 
as epilepsy, hysteria, neurasthenia, psychasthenia, cerebral 
syphilis, alcoholism, drug habits, etc. Or they may be inca- 
pacitated by a temporary condition, such as a wound in the head 
or a momentary state of emotional excitement. But even if 
the sensory organs convey accurate impressions of these exter- 
nal occurrences, these impressions may become distorted by 
reactions within the brain. The judgment may misconstrue 
these sensory impressions. The influence of age, sex, occupation, 
beliefs, etc., must be noted in this connection. Each impression 
upon reaching the brain awakens memories of past impressions. 
These impressions combine with each other, and lapses in the 
recollection of one impression may be filled by memories of other 
impressions, thus rendering these memories more or less inac- 
curate. The memory may also be modified 'by means of sug- 
gestions from the outside. These are some of the causes which 
make the memory unreliable. 



298 CRIMINOLOGY 

Witnesses may be classified according to sex and age, or ac- 
cording to their peculiarities in giving testimony. In some re- 
spects young children are good witnesses, since they have com- 
paratively few beliefs or prejudices to bias their testimony. But 
their imagination lacks restraint, and they possess a weak sense 
of responsibility. They are usually very suggestible, and lie 
for different motives or for no reason whatever. They lack an 
exact notion of time, and have few abstract ideas. The young 
boy is ordinarily a better witness than the young girl, because 
he observes more carefully. The young girl is not so good a 
witness, because she stays at home and sees little of the world. 
She has too vivid an imagination, and frequently gives false 
testimony for the sake of excitement. On the other hand, adults 
observe carefully what they notice, but their attention is de- 
termined largely by their interests, and their observations tend 
to become colored by their beliefs and prejudices. 

Witnesses may be classified according to their' desire to tell 
the truth. Those who do not intend to tell the truth can fre- 
quently be discovered by means of psychological methods, and 
the truth forced from them in spite of themselves. But even 
those who desire to tell the truth frequently fail to do so for the 
reasons which have been stated. These include many types 
ranging from the pathological, such as the insane, the paranoiac, 
the hysterical, etc., to the normal or nearly normal who give 
false testimony unwittingly on account of errors of the memory 
to which any normal person is liable. 

These psychological facts can be used in practical jurispru- 
dence in a psychiatric and psychological examination of the wit- 
ness which will reveal his mental traits. In the first part of 
such an examination it would be ascertained whether or not a 
witness is pathological, that is to say, whether or not his sensory 
organs are in a diseased condition, or if he is lacking in capacity 
to fix the attention, or in ability to reproduce what he has seen. 
But this examination should be carried far enough to ascertain 
the normal mental peculiarities of the witness. For example, 
by means of a comparatively simple test it can be ascertained 
whether the memory of the witness is of the visual, the auditory, 
or the tactile type. This fact is of great significance in estimat- 
ing the value of his testimony about a particular occurrence. 

It has been suggested that by means of such an examination 



THE SCIENTIFIC PRINCIPLES OE EVIDENCE 299 

can be determined the "constants of certitude" of a witness, 
that is to say, the degree of accuracy to be expected of him, 
and that the value of his testimony can be estimated according 
to this constant number. It is doubtful, however, if this would 
be wise, since the value of a person's testimony varies according 
to the occurrence about which he is testifying. Furthermore, 
such an examination would probably not be necessary for every 
witness. It would be necessary when the testimony was about 
a complicated situation, and where the testimony was contra- 
dictory. It should always be given to a witness whose testimony 
is decisive, especially when there is contradictory testimony 
on essential points. It should be given whenever there is reason 
to believe that a witness is lying, or is not telling as much as he 
knows. By an analysis of the association of ideas in the mind 
of the witness much can be learned as to whether he has been 
lying, and as to the true contents of his memory. 

The use of spontaneous and suggested testimony should be 
governed by the mental traits of the witness. As a general rule, 
spontaneous testimony is much more accurate than suggested 
testimony, though not so detailed. Consequently, suggestive 
questions should ordinarily be avoided, especially when the 
witness has a strong imagination. But sometimes in the case 
of a laconic witness who has no interest in the affair it becomes 
necessary to ask suggestive questions in order to draw out his 
testimony. These questions should be carefully framed in order 
to avoid influencing the character of the testimony. The sug- 
gestive power of the press should always be taken into account 
whenever it has influence upon the testimony of a witness. 

In order to make these examinations it would be necessary 
to have a psychological expert attached to every criminal court. 
The medico-legal expert could in many cases be given the train- 
ing which would fit him to perform these functions. In an 
office adjoining the courtroom he could, whenever necessary, 
quickly apply the tests which would determine the mental 
peculiarities of a witness. 

Furthermore, all those who take part in conducting a judicial 
examination or trial, such as judges, prosecutors, counsel for the 
defense, etc., should have some acquaintance with these psy- 
chological facts and principles. This would enable them to 
estimate more accurately the value of testimony. They would 



300 CRIMINOLOGY 

then know under what circumstances a witness should be sent 
to the psychological expert for an examination. 

The above discussion shows the practical significance of 
psychological facts and principles for the presentation and 
judging of legal evidence. Up to the present time evidence has 
been judged by empirical rules and principles, which frequently 
have been wrong. The application of these scientific principles 
would make possible a much higher degree of certitude as to the 
veracity and accuracy of testimony. 

Furthermore, the psychological examination could take the 
place of the vulgar and frequently brutal ordeals of the " third 
degree." This method is frequently used by the police to extort 
confessions and other kinds of desired testimony. It sometimes 
brings to light genuine facts, but almost invariably does so in 
an illegal and brutal fashion. It frequently gives rise to false 
testimony which may furnish the basis for a miscarriage of 
justice. The psychological method is infinitely superior, because 
it is quicker, far more reliable, and is just and humane. 

Heretofore it has been the theory of the law that the testi- 
mony of one witness is as good in quality as the testimony of 
any other witness. But this theory has never been consistently 
applied in practise, because judges, whether professional or lay, 
have always given more weight to the testimony of some wit- 
nesses than to the testimony of other witnesses. Psychology 
shows us that there are great differences in the reliability of 
witnesses. But the judges have discriminated according to 
purely empirical principles, and not according to scientific 
principles. The judges should, therefore, become acquainted 
with these scientific principles. 

In similar fashion scientific principles should be applied in 
the analysis of the results of the physiological and sociological 
examinations. On the basis of these examinations should be 
decided what penal treatment is to be given to those who are 
found guilty of crimes. 

When these reforms in the presentation of evidence have 
been accomplished, the scientific stage of evidence will have 
been attained, Evidence will then be gathered and its value 
estimated according to scientific principles based on expert 
knowledge derived from experiments and from facts which 
have been systematically collected and studied. 



CHAPTER XIX 
PUBLIC DEFENSE IN CRIMINAL TRIALS 

The injustice of private defense — Public defense and the reform of crim- 
inal procedure — Abolition of the plea of guilty — Significance of 
public defense for a scientific criminal procedure: the individualization 
of punishment; the education and selection of prosecutors, defenders, 
and judges — Public defense and the contradictory debate — Free 
civil justice. 

It is an axiom of the law that a person charged with crime is 
presumed to be innocent until found guilty; and yet society 
does all it can to convict him, but almost nothing to secure for 
him an adequate defense. In a criminal trial the prosecution 
is conducted by a public prosecutor, employed by the state; 
but the defendant at the bar is forced to provide for his own 
defense. He ; a single individual, must defend himself against 
the state, representing many individuals. If he has money at 
his command, all may be well with him. If he has no money, 
his plight is a pitiable one indeed. 

It is true that the public prosecutor is charged in theory with 
the conservation of the interests of the defendant, as well as 
with the duty of prosecuting him. But it is a notorious fact 
that in practise the public prosecutor is almost invariably bent 
on securing a conviction, regardless of the interests of the de- 
fendant. It is true also that when the defendant is unable to 
employ counsel, the court will assign counsel for the defense. 
But ordinarily the defense furnished by an assigned counsel 
is little better than a farce. Consequently, it is evident that the 
present system of public prosecution coupled with private de- 
fense in our criminal procedure does not maintain the balance 
between social and individual rights, and puts rich and poor 
upon a very unequal standing before the law. 

The Injustice of Private Defense 

In the pure form of the procedure of accusation both prosecu- 
tion and defense were private. Then gradually through the 



302 CRIMINOLOGY 

influence of the procedure of investigation, prosecution became 
public, but the defense has remained private. In England, as 
late as 1836, no person prosecuted for any felony, except treason, 
had even the right to employ counsel. The helplessness of the 
defendant in the face of an organized prosecution carried on by 
trained prosecutors was so evident that in the English courts the 
judges began to watch over the interests of the accused, and 
became to a certain extent counsel for the defense. 1 

The palpable injustice of this system led, in the first half of 
the nineteenth century, to the extension of this privilege of 
securing counsel to all those prosecuted for crime, and for matters 
of fact as well as questions of law. So that if the defendant has 
the means to employ counsel as able as the counsel employed by 
the prosecution, he is likely to obtain justice in the trial. If, 
however, a defendant is poor, as is frequently the case, he is 
unable to procure the assistance of counsel, so that this system 
is unjust to the poor defendant. 

When a defendant is unable to employ counsel, it becomes the 
duty of the judge to assign a lawyer practising in his court to take 
charge of the defense. As a general rule, this lawyer is young 
and comparatively inexperienced, and receives no compensa- 
tion from the court for performing this service. The usual result 
is that the lawyer endeavors to ascertain the financial resources 
of the defendant in order to determine whether there is any 

1 Sir William Blackstone, writing in the latter part of the eighteenth cen- 
tury, comments upon this situation as follows: 

"It is a settled rule at common law, that no counsel shall be allowed a 
prisoner upon his trial, upon the general issue in any capital crime, unless 
some point of law shall arise, proper to be debated. A rule, which (however 
it may be palliated under cover of that noble declaration of the law, when 
rightly understood, that the judge shall be counsel for the prisoner; that is, 
shall see that the proceedings against him are legal and strictly regular) 
seems to be not at all of a piece with the rest of the humane treatment of 
prisoners by the English law. And the judges themselves are so sensible 
of this defect that they never scruple to allow a prisoner counsel to instruct 
him what questions to ask, or even to ask questions for him, with respect 
to matters of fact; for as to matters of law arising on the trial, they are en- 
titled to the assistance of counsel." (Commentaries, Book IV, Chap. 25.) 

It is obviously most unwise to put the judge in a partizan position by 
encouraging him to take the side either of the prosecution or of the defense. 
And yet this is likely to happen when one of the two sides in a trial is much 
weaker than the other side. 



PUBLIC DEFENSE IN CRIMINAL TRIALS 303 

possibility of securing a fee. If there is no such possibility, his 
desire is to dispose of the case with as little trouble as possible. 
Under such conditions the defense will inevitably be inadequate. 

It even happens sometimes that the assigned counsel will try, 
first of all, to persuade the defendant to plead guilty, regardless 
of whether or not he is guilty. If the counsel succeeds, he is re- 
lieved from the burden of expending time and effort in defending 
the case. The defendant may, however, protest his innocence 
and insist upon a trial. The lawyer will then give to the prepara- 
tion of the case as little time as possible. The defendant re- 
ceives a weak and inadequate defense in opposition to the care- 
fully prepared prosecution of the public prosecutor. This is 
grossly unjust to the defendant who is so unfortunate as to be 
unable to employ counsel, and such defendants sometimes plead 
guilty rather than be tried with so inefficient a defense. 1 

In order to remove the evils which arise out of inefficient de- 

1 According to the reports of the Court of General Sessions in the County 
of New York, free counsel was assigned in that court to 331 poor defendants 
in 1906, and to 1,495 P oor defendants in 1915. These figures indicate to a 
slight extent the large number of persons in this country to whom counsel 
is assigned. 

Attempts have been made in the past in various countries to provide 
defense for poor defendants. The tribunes of ancient Rome were prepared 
to take the part of a defendant in a criminal case. (C. Lombroso, Crime, 
Its Causes and Remedies, Boston, 191 1, pp. 327-328.) In Piedmont and in 
Naples there used to be an official called the "advocate of the poor" who 
acted as counsel in all pauper cases, and such an official still exists in the 
city of Alexandria in Piedmont. (E. Ferri, Criminal Sociology, Boston, 
1917, p. 472.) It appears that a similar official called the "pauperus pro- 
curator" existed under the Papal government in Rome. (See Robert Brown- 
ing, The Ring and the Book.) An advocate of the poor was provided at pub- 
lic expense in Spain in the fifteenth century. (Prescott, History of Ferdinand 
and Isabella, Vol. I, p. 194.) A similar official still exists in Spain, in the 
Argentine Republic, and in Mexico. Free legal defense is provided to poor 
defendants through the bar associations in France (M. Parmelee, The 
Principles of Anthropology and Sociology in Their Relations to Criminal 
Procedure, New York, 1908, p. 276), and in Scotland. (E. R. Keedy, Crim- 
inal Procedure in Scotland, in the Jour. Crim. Laiv, Vol. Ill, No. 5, Jan., 

ioi3> PP- 738-9J 

Other cases might be cited, but, so far as I can discover, up to the present 
day there has been no thoroughgoing system of public defense in criminal 
trials in any country. When the state has paid for defending poor prisoners 
the defense has naturally been more efficient than when such legal assistance 
has been gratuitous. 



304 CRIMINOLOGY 

fense for poor defendants, it is necessary to take the next step, 
which is also the final one, in the historical evolution which has 
been raising the efficiency of the defense to the level of the 
efficiency of the prosecution. This step is the establishment of a 
system of public defense, which would, I believe, be the most 
important reform in the existing system of procedure, and would, 
furthermore, be of the greatest significance for the development 
of a new system of criminal procedure based upon the data and 
inductions of the modern science of criminology. 1 

The present system of procedure can be improved in several 
respects by the introduction of public defense. In the first 
place, it is evident that the standing of rich and poor before the 
law would be equalized, for the poor would then have as efficient 
a defense as the rich. But still more would be accomplished by 
this reform. Society now claims the right to prosecute, but does 
little or nothing to defend. And yet no one, not even a rich 
person, ought to be forced to provide "for his own defense. Espe- 
cially true is this of the innocent victims of public prosecution. 
They have suffered the humiliation of being prosecuted, have 
been forced to face the possibility of being convicted, and have 
lost time and money in being tried for crimes of which they are 
ultimately acquitted. For this suffering and loss they ought to 
be indemnified by the state, as is now being done in several 
countries. 2 The least that society can do for them is to provide 

1 Bills providing for a public defender have been introduced into the 
legislatures of several states during the past twenty years. (See the Report 
of the Law Reform Committee of the Association of the Bar of the City of New 
York on The Necessity and Advisability of Creating the Office of Public De- 
fender, New York, 1915, pp. 2-3.) This measure has been advocated by 
the Socialist party in various countries. 

But so far as the present writer has been able to discover, he was the 
first writer in this country, or, for that matter, in the world, to present a 
comprehensive statement of the case for public defense in criminal trials. 
(Maurice Parmelee, Public Defense in Criminal Trials, in the International 
Socialist Review, October, 1905; The Principles of Anthropology and Sociology 
in Their Relations to Criminal Procedure, New York, 1908, Chapter VIII; 
Public Defense in Criminal Trials, in the Proceedings of the Kansas State 
Conference of Charities and Correction, 1909; Public Defense in Criminal 
Trials, in the Jour. Crim. Law, Vol. I, No. 5, January, 1911.) 

Furthermore, the present writer is the only one up to the present time 
who has pointed out the significance of public defense in criminal trials for 
a system of criminal procedure based upon scientific principles. 

2 See Chapter XXI. 



PUBLIC DEFENSE IN CRIMINAL TRIALS 305 

them with adequate defense. And yet they are left entirely 
to their own resources to secure this defense. If they lack suffi- 
cient resources to secure adequate defense, they are given the 
existing form of official defense, which, as I have shown, is in 
the main a failure. 



Public Defense and the Reform of Criminal Procedure 

Public defense will, in all probability, prevent most of the 
exploitation of sensational cases caused by both prosecuting 
attorneys and counsel for the defense who are endeavoring to 
advertize themselves rather than to secure a speedy administra- 
tion of public justice. By means of such exploitation an un- 
healthy public interest in crime is stimulated, and the adminis- 
tration of justice is diverted from its important social function. 

The introduction of public defense will inevitably meet opposi- 
tion from some members of the bar. But the bar associations, 
which are constantly striving to raise the standard of the legal 
profession, should favor this reform, because it will tend to 
purify the profession by eliminating the disreputable lawyer. 
Furthermore, many positions as public defenders would be 
created which would go to the better class of lawyers, and a 
certain amount of the better kind of criminal practise might 
still remain. Public defense would not necessarily destroy 
private criminal practise at once. Defendants might still retain 
the privilege of employing private counsel when they so desire. 
It is impossible to determine at present whether it would ever 
be well for the public defender to allow a case to go entirely 
out of his hands. It might be well for him to have supervision 
in every case, and in course of time he would probably be given 
complete control of every criminal case. But for a time, at any 
rate, private counsel would cooperate with him in defending 
cases. Thus public defense would leave a large field for honor- 
able and dignified practise either as a public defender or as a 
private counselor. 

Public defense will destroy much of the opposition now made 
by some lawyers to the reform of criminal procedure. This 
opposition grows in large part out of the fear that these reforms 
will limit their field of practise. Inasmuch as public defense 
would realize this fear, they would no longer have much in- 



306 CRIMINOLOGY 

terest in opposing other reforms. Thus one great obstacle in 
the way of the reform of criminal procedure would be removed. 

The principal effect of public defense as a reform of the 
present system of criminal procedure will be to render much less 
likely the conviction of innocent persons. It may be asserted, 
however, that it will also result in the acquittal of more guilty 
persons. If this were true, it would be a serious objection to 
public defense, for criminal procedure should not become any 
less effective in securing the conviction of the guilty. But this 
criticism is not true, because, in the first place, public defense 
would make public prosecution no less effective. In the second 
place, in many trials at the present time professional criminals 
employ counsel more able than the public prosecutor, thus 
greatly increasing the chances for their acquittal. If public 
defense was made the rule, so that defendants in criminal cases 
could not employ private counsel, the defense would be on an 
equality with the prosecution with respect to .ability, so that 
professional criminals would be unable to secure an acquittal by 
employing counsel superior to the prosecution. 

Public defense would eliminate almost entirely the many 
disreputable lawyers in criminal practise. The existence of 
these so-called "shyster" lawyers is favored on the one hand 
by professional criminals, who need the services of unscrupulous 
counsel, and on the other hand by poor and ignorant defendants, 
whose precarious situation makes them the easy prey of these 
lawyers. Under a system of public defense, however, all the 
cases of professional criminals and of these poor and ignorant 
defendants w r ould be in the hands of the public defender, so 
that the field of activity for the disreputable lawyer would be 
destroyed. Public defense would, therefore, tend to purify 
the legal profession. 

The public defender could do much more effective work than 
the probation officer. This officer exists in certain of the courts 
in states where probation or parole laws have been enacted. 
Part of his work is to prevent some of the abuses which have 
been described. As a general rule he can have nothing to do 
with a criminal case until the defendant has been convicted 
or has pleaded guilty. He is then directed by the judge to in- 
vestigate the case. Having gathered as much information as 
possible, he reports to the judge. He may also make a recom- 



PUBLIC DEFENSE IN CRIMINAL TRIALS 307 

mendation as to the best method of disposing of the case. Where 
the prisoner appears to have been convicted unjustly, or where 
leniency seems desirable, he recommends leniency. He may 
thus prevent to a slight extent some of these abuses. But he 
is narrowly limited in his powers and opportunities. His work 
is performed in a more or less haphazard and incidental manner, 
and his success depends largely upon the judges under whom he 
happens to be working. He is usually unable to influence a case 
until after the greatest injury has been inflicted, and is then 
able to alleviate only to a slight degree the effects of the injury. 

The public defender, on the contrary, would have charge of a 
case from the outset and could prevent all of the abuses which 
have been described. The conviction of innocent persons due 
to inefficient defense by lawyers appointed by the judge would 
no longer be possible. The work of investigating the past 
record of prisoners about to be sentenced, now done by proba- 
tion officers, could be done as well or better by the public de- 
fender. In most cases he would already have made this investi- 
gation while conducting the trial. The public defender would 
thus become to a large extent the logical successor of the pro- 
bation officer. 

Some of the principal evils in the administration of the law 
today arise out of long delay in bringing cases to trial. These 
delays in criminal cases are frequently caused by the public 
prosecutor, who is looking for evidence of guilt. The public 
defender would in the meantime be searching for evidence of 
innocence, and would demand a trial as soon as he had obtained 
his evidence. Delay in bringing a case to trial is a great in- 
justice to the defendant, especially if he is unable to give bail 
and is forced to wait in prison. The public defender, by se- 
curing proof of innocence, could in many cases prevent this 
delay. 

Abolition of the Plea of Guilty 

Public defense in criminal trials would make it much more 
feasible to dispense with the present method of allowing de- 
fendants to plead guilty. The plea of guilty does not exist 
in European Continental systems of procedure, 1 and has given 

1 Oliver E. Bodington, An Outline of the French Law of Evidence, London, 
1904. 



308 CRIMINOLOGY 

rise to several grave abuses in Anglo-American procedure. The 
plea of guilty is permitted in order to expedite the business of 
the court. A defendant in a criminal trial is brought before 
the court and asked whether he wishes to plead guilty. Many 
defendants, owing to ignorance of court procedure, or, in the 
case of immigrants, of the English language, are incapable of 
understanding this question. It sometimes happens that one 
of these ignorant defendants, who is not represented by counsel, 
will answer affirmatively to this question. He will plead guilty 
unwittingly, and frequently without intending to plead guilty. 
This grave miscarriage of justice can happen because the de- 
fendant does not have adequate representation in court, a con- 
tingency which would never arise under a system of public 
defense. In other cases poor and ignorant defendants are in- 
timidated into pleading guilty because of the lack of adequate 
means of defending themselves. 

On the other hand, experienced criminals when charged with 
crime frequently take advantage of this opportunity to plead 
guilty. They will plead guilty with the utmost alacrity in order 
to secure as a reward the benefit of the leniency ordinarily dis- 
played under these circumstances by the law, the public prose- 
cutors, and the judges. It often happens that a first offender 
who has stood trial and has been convicted will receive a longer 
sentence than an old offender who has pleaded guilty to the 
same crime. Such grotesque mistakes as these would rarely 
happen if a trial were held in each case. In the course of the 
trial the past record of each defendant would be exposed, and 
it would be possible to judge according to the character and 
past record of the criminal. Public defense would make it 
much more feasible to have a trial in every case, because the 
public defender would be ready to prepare carefully the de- 
fense in each case, and would be able to guarantee to each de- 
fendant a fair trial. 

The plea of guilty in our existing system of criminal procedure 
tempts a public prosecutor to urge a defendant to plead guilty 
in order to save himself the time and trouble of prosecuting 
the case. He may threaten with unusually severe punishment 
the defendant who insists upon a trial. He may offer to allow 
the defendant to plead guilty to a crime less serious than the 
one with which he is charged. Or the prosecutor may offer to 



PUBLIC DEFENSE IN CRIMINAL TRIALS 309 

ask the judge for leniency if the defendant will plead guilty. 
As a result poor and ignorant defendants are frequently fright- 
ened or coerced into pleading guilty. No defendant should be 
made to feel that he is jeopardizing his interests by insisting 
upon a trial. The public defender could shield the innocent 
defendant from the threats of the public prosecutor. 

It will be contended that the abolition of the plea of guilty 
from our procedure will increase greatly, and to a considerable 
extent unnecessarily, the work of our criminal courts. But 
this increase will after all be comparatively small, because the 
statement of the defendant that he is guilty will be taken 
as testimony, as in European Continental procedure. This 
testimony will ordinarily be accepted as conclusive evidence 
of guilt, and will, therefore, greatly shorten and simplify the 
trial. 

In some cases, however, the trial would prove that this testi- 
mony is not true. Insanity or a delusion will sometimes make a 
defendant think himself guilty when he is innocent. In other 
cases a defendant will for a hidden motive testify that he is 
guilty when he knows that he is innocent. Men have been 
known to plead guilty to crimes of which they were innocent 
in order to shield the reputation of women whom they loved. 
In most of these cases a trial would reveal the falsity of this 
testimony, and would prevent the punishment of an innocent 
person, while in all cases a trial would furnish a better basis for 
the individualization of penal treatment by revealing more 
fully the character and past record of the criminal. 

Significance of Public Defense for a Scientific Criminal 
Procedure 

But public defense is also of the utmost significance for the 
development of a new system of criminal procedure in which 
public defense will not only safeguard the innocent from con- 
viction, but will also materially influence the treatment of the 
convicted. One of the fundamental principles of this new pro- 
cedure will be the individualization of punishment. In order to 
individualize penal treatment wisely it is necessary that those 
who conduct criminal procedure shall be able to estimate at 
their true value the facts which are accumulated with regard to 



3IO CRIMINOLOGY 

the persons who are tried and convicted. It is, therefore, abso- 
lutely essential that the prosecutor and defender who accumu- 
late and present the evidence shall recognize the facts which are 
significant, and shall present them intelligently, thus making the 
trial a basis for individualization. 

In order to accomplish this end the prosecutors and defenders 
should be trained in criminal anthropology and sociology, 
psychiatry, and penology. So long as private defense exists, it 
will be impossible to require this training of the defenders, for 
under a system of private defense it is possible to retain any 
lawyer for the defense, even one who usually practises in the 
civil courts. But under a system of public defense it would be 
possible to give both prosecutors and defenders a thorough 
training. This training would begin with the study of the 
sciences mentioned above, in addition to the usual legal training, 
by those who wish to fit themselves for criminal practise. In a 
number of European Continental law schools such courses have 
already been introduced for those who expect to specialize in 
criminal practise. If public defense existed, it would be possible 
to make these courses obligatory. The theoretical study in the 
law school would be supplemented by practical study, first in 
connection with the police, where the student would become 
acquainted with the methods of pursuing the criminal, and 
would assist in the work of gathering and classifying evidence. 
Next the student would spend a period of time in the prisons 
in the study of penological methods and of the criminals them- 
selves. 

After this clinical study he would be prepared to enter criminal 
practise either as a public prosecutor or as a public defender. It 
would probably be advisable, in order to avoid any bias whatso- 
ever against the defendant, that the young advocate's first 
duties should be as a defender. But a period of service as 
defender should be followed by a similar period of service as 
prosecutor, and this alternation between the two offices shoulr. 
be continued. This interchange between the personnel of the 
prosecution and of the defense would give a wide experience to 
all of the members of the criminal bar, and would avert the bias 
which now tends to develop either for or against the defendant 
through exclusive work either for the defense or for the pros- 
ecution. 



PUBLIC DEFENSE IN CRIMINAL TRIALS 3II 

But this special training for criminal practise, which would be 
made feasible by the introduction of public defense, is of the 
utmost importance for still another reason. From the ranks of 
the public prosecutors and defenders should be recruited the 
judges for the criminal bench. These judges would be much 
better prepared to perform their important social functions 
than the members of the criminal bench of today. The study 
of law and of social science would enable them to appreciate 
much better the relation between society and the criminal, and 
to understand the significance of crime in the social economy. 
The study of the scientific methods of gathering evidence, the 
psychology of testimony, the law of evidence, and the technical 
rules of procedure would render them much more competent to 
judge as to the commission of crime. The study of the biological, 
psychological, and social causes of crime and the scientific 
methods of penal treatment would enable them to prescribe 
treatment for the criminal much more wisely. This preliminary 
theoretical education would be supplemented by an extensive 
and varied practical experience in connection with the police, 
in the prisons, and in the different branches of criminal pro- 
cedure. 

These judges would be able to gather many scientific facts 
whose significance the judges of today are not even capable of 
recognizing. These facts will have great value in developing 
the science of criminology, and in increasing its applications to 
procedure. Upon the decisions of these judges will be based a 
system of jurisprudence which, though it can never be as precise 
in an arbitrary manner as a jurisprudence based entirely upon 
a penal code, will nevertheless be more scientific than an ar- 
bitrary penal code, and will therefore increase the wisdom and 
certainty of decisions as time goes by. 

Under the new system of criminal procedure which would 
grow out of public defense it would no longer be feasible to 
elect to office public prosecutors and criminal judges, as is 
customary today. In the olden days when the power of kings 
and of the aristocratic class was still great, the election of judges 
was a valuable guarantee of popular rights. But in our modern 
democracies such a guarantee is no longer necessary. If the 
criminal bar and bench is to become a special profession, it is 
essential that the tenure of office should be more or less per- 



312 CRIMINOLOGY 

manent. Sufficient control over this profession could be exer- 
cized in most cases by a board of discipline composed of high 
executive, legislative, and judicial officials. Inasmuch as it 
would represent all branches of the government, such a board 
would be impartial when exercizing its power over the judiciary. 
Public impeachment could be used as a control in extreme cases. 
Hence it is that public defense would make possible the 
development of a new system of criminal procedure in which 
the criminal bar and bench would receive special training, and 
would be appointed to office according to a merit system. In 
this new system the largest possible use would be made of the 
data and inductions of criminological science, thus making the 
trial a much better basis for the individualization of punishment. 

Public Defense and the Contradictory Debate 

An apparently serious objection which is raised against public 
defense is that if both prosecution and defense are to be con- 
ducted by public officials, the opposition between the two sides 
might as well be abolished, and the trial be conducted by one 
group of officials representing the state who will judge impar- 
tially. To many persons it seems anomalous that the state 
should prosecute and defend at the same time. But this appar- 
ent inconsistency does not in reality exist. On the contrary it 
has been amply demonstrated in this book that the functions 
of criminal procedure are social. Consequently, both prosecu- 
tion and defense are social functions, and in the long run rep- 
resent the same social interests. So that there is no contradic- 
tion of interests between public prosecution and public defense. 

I have already shown that the procedure of investigation was 
based upon the principle of social defense against crime, and 
that the trial in this type of procedure was supposed to be an 
impartial examination. Later for practical reasons the contra- 
dictory feature of the procedure of accusation was introduced 
into a procedure based upon a principle similar to that of the 
procedure of investigation. The partizan trial has practical 
utility because it is useful for the presentation and exposition of 
evidence, and for arriving at a decision. It is hardly possible 
for a single mind to go over all of the facts in a case and arrive at 
a definite conclusion when these facts are complex and are not 



PUBLIC DEFENSE IN CRIMINAL TRIALS 313 

sufficiently complete to afford scientific accuracy, as is often the 
case in criminal trials. 1 It is, therefore, necessary to have the 
evidence on each side presented in as striking a manner as pos- 
sible to the unbiased minds of the judge and jury, in order that 
they may weigh the evidence quickly and come to a decision. 
By making the opposing sides in the partizan trial equal in 
ability, as would be the case with public prosecution and public 
defense, the tendency of advocates to be prejudiced would be 
neutralized. 

However, if a better method of presenting evidence and of 
arriving at a decision than the partizan trial is devized, it may 
become possible to abolish the partizan trial and prosecution 
and defense from criminal procedure. The trial of today is still 
too much of a forensic duel in which the principal question is as 
to who will win. The true functions of a trial are to reveal ev- 
idence and to arrive at a practical conclusion. To perform these 
functions well it is necessary to strengthen those elements in our 
criminal courts which desire primarily the investigation of 
truth, and not those which are interested solely in winning a 
case. Public defense will tend in this direction by lessening a 
counsel's personal interest in one side of a case, by averting the 
development through habit of a bias on one side, and by in- 
creasing by means of special training a counsel's ability to recog- 
nize what is significant and true in the evidence. Eventually 
public defense may lead to the abolition of the contradictory 
debate from criminal procedure. 

Within the last few years public defenders have been ap- 
pointed in several places in this country. 2 But nowhere as yet, 
in this country or elsewhere in the world, has there been estab- 
lished a system of public defense such as has been outlined in the 

1 Cf. E. Ferri, Criminal Sociology, Boston, 191 7, p. 472. 

2 Public defenders were appointed in Oklahoma in 1012, in Los Angeles, 
Cal., in 1914, in Portland, Ore., in 1915, in Omaha, Neb., in 1915, in Pitts- 
burg, Penn., in 1915, in Columbus, Ohio, in 1915, etc. (See the Report of 
the Law Reform Committee of the Association of the Bar of the City of Neiv 
York on The Necessity and Advisability of Creating the Office of Public De- 
fender, New York, 1915, pp. 4-10; M. C. Goldman, The Public Defender, 
New York, 1917, pp. 81-84.) 

Free defense for poor defendants is furnished by many philanthropic or- 
ganizations and private individuals, while in a number of cities so-called 
"voluntary" public defenders have been appointed. 



314 CRIMINOLOGY 

preceding pages. The forms of public defense now in existence 
bear only a remote resemblance to the system of public defense 
which I have described. It will doubtless be impossible to in- 
troduce a thoroughgoing system of public defense until crim- 
inological principles are much more widely known than is the 
case at present. 

Free Civil Justice 

The logical sequel to public defense is free civil justice; that is 
to say, the employment of attorneys by the public for the plead- 
ing and defense of civil cases. There is no more equality before 
the law for rich and poor in the civil courts than there is in the 
criminal courts, because a decision in favor of the plaintiff or 
the defendant in a civil suit, however much in the right he may 
be, depends largely upon his ability to secure efficient counsel. 
There will not be justice for all until both criminal and civil 
procedure are made free. 

It will be contended that free civil justice would stimulate 
an excessive amount of litigation. This will probably be the 
case at first, but measures can and will be devized to prevent 
unnecessary litigation by imposing penalties upon the losing 
side in civil suits, as, for example, the payment of costs, when- 
ever the court decides that the plaintiff did not have adequate 
reason for bringing suit, or was not prompted by a genuine sense 
of justice in doing so. In the long run, free civil justice would 
probably cause less work for the courts than the present system, 
because much time would be saved which is now wasted by 
private counsel over technicalities in order to increase the size 
of their fees. Furthermore, free civil justice would prevent a 
certain amount of crime which is now caused by the lack of 
financial resources for the bringing of civil suits, and by the slow 
administration of justice in the civil courts. It sometimes hap- 
pens that a person who is unable to seek justice through the 
courts, or who has been foiled in the attempt to secure it in a 
legal manner, will resort to criminal methods for the purpose of 
securing this justice. 

It will also be contended that public defense and free civil 
justice will require a large expenditure on the part of the state. 
In all probability the state will be more than recompensed in 



PUBLIC DEFENSE IN CRIMINAL TRIALS 315 

the long run for this expenditure by the diminution in the 
amount of crime and other forms of social friction which will 
result from free criminal and civil justice. But in any case this 
expenditure is fully justified as a means of bringing about an 
equalization of justice for rich and poor and of socializing crim- 
inal and civil procedure. Justice is a fundamental human right, 
and there are few if any functions of a state which are more im- 
portant than that of securing justice for its citizens. 



CHAPTER XX 

THE JUDICIAL FUNCTION 

The English jury — The characteristics of jurors — Criticisms of the jury — 
The functions of the judge — The training and appointment of judges 
— The control of the judiciary. 

The jury is a very ancient institution. Under the Mosaic 
law the elders performed this judicial function. In ancient 
Athens this function was performed by the Heliastes. The 
Roman jury of judices jurati had jurisdiction only in civil cases. 
Among the Teutonic tribes the citizens had the power of judg- 
ing. The feudal jury was composed of the peers "of the accused. 
So that the custom of deciding legal cases by means of a body 
of men other than professional judges who are sworn to judge 
the evidence has been widespread in the past. 

The English Jury 

The type of jury now in use developed in England. It is 
difficult to ascertain the origin of the English jury. One theory 
is that it came from the ancient Scandinavian jury through the 
Danish jury. Another theory is that it came from the judicial 
assemblies of the Saxons. But wherever it may have originated, 
it was much influenced in its development by a form of jury in- 
troduced into England at the time of the Norman conquest 
from the procedure of inquiry in the ancient French law known 
as the inquisitio. In this procedure the judge summoned a 
number of citizens, not definitely fixed, worthy of confidence and 
acquainted with the facts, and after administering the oath to 
them asked them for their opinion. 

Henry II, Duke of Normandy, made the inquisitio an organic 
part of the Norman law, so that under certain conditions it 
could be demanded in any criminal case. When Henry went to 
the throne of England as its conqueror, this method of proof 
was introduced as the recognitio d'assisa. It extended at first 



THE JUDICIAL FUNCTION 317 

only to questions of property (magna assisa) and of possession 
(parva assisa). 

At first the jurors in the English jury were merely witnesses 
whose duty it was to testify from personal knowledge, and some- 
times to offer an opinion. Later they acquired the power to 
judge as well as to testify, and in course of time ceased to be 
witnesses. 

The jury of denunciation appears to have been established by 
Henry II about the year 1164 A. D. (Constitution of Clarendon, 
10 Hen. II), though it is possible that it had existed previously 
among the Saxons. This form of jury later became a jury of 
accusation, now known as the grand jury. The coroner's jury, 
which was established originally to investigate shipwrecks, 
treasure- trove, etc., acquired the functions of investigating 
violent deaths, and of making accusations when it saw fit. Up 
to the reign of Edward III- the same persons could constitute 
the jury of accusation and the jury of judgment, but since that 
time this has become impossible. 

From England the jury was carried to America, where it is 
used among Anglo-Saxon peoples almost if not quite as exten- 
sively as in England. The English jury did not go to the Eu- 
ropean Continent until the time of the French Revolution. 
The use of torture as a mode of proof was abolished at that 
time, and the introduction of the jury was in harmony with the 
democratic spirit of the times. From France the jury spread 
to most of the countries of Europe. 

As I have already stated in Chapter XVIII, the coroner's 
jury is being replaced by medico-legal experts. The grand jury 
also is rapidly being superseded in its functions of examination 
by the examining magistrate, who can do this work much more 
efficiently. In several of the American States a grand jury is 
summoned only for exceptional cases, as when political cor- 
ruption has been widespread. We shall therefore devote all 
of our attention to the jury of judgment, or petit jury. 

The Characteristics of Jurors 

The jury is based upon certain principles which have been 
gradually formulated in the course of its history, and which 
are always used as arguments in its favor. The jury is regarded 



318 CRIMINOLOGY 

as the "bulwark" or "advance guard" of liberty, because it 
is supposed to protect the rights and liberties of the people 
against encroachments by the central power. It represents 
public opinion, and keeps the professional judges and the courts 
in touch with the public conscience. It is a school of citizenship. 
It is entirely independent, and is therefore not responsible to 
the central authorities. Its naive conscience, unsophisticated 
in the law, furnishes the best method of judging evidence. 
Its moral judgment serves as a corrective for the laws. A con- 
sideration of the salient traits of the jury will indicate the value 
of these arguments in its favor. 

The machinery by means of which jurors are chosen varies 
more or less from place to place. It is, however, almost invari- 
ably the custom to exclude manual and day laborers. Many 
professional men, also, such as doctors, teachers, lawyers, clergy- 
men, etc., are excluded, as well as many persons in the upper 
classes. So that the tendency is to exclude the lowest and the 
upper classes. The standard of intelligence of the jury is, 
therefore, at best mediocre. 

It is difficult for most jurors to perform jury service. It is not 
easy for a merchant or farmer to leave his work, and the fees 
are not usually sufficient to pay for the loss of time. For this 
reason many jurors endeavor to be excused at the beginning 
of their term of service. Sometimes, indeed, a juror will induce 
a lawyer to challenge him in order to be relieved from serving 
on a jury. On the other hand, certain jurors are anxious to 
serve, some of them in order to acquire a reputation in their 
neighborhood, others of them in order to secure the fees. The 
latter ordinarily belong to a low type of juror. 

The jurors are usually inspired by a sincere desire to do their 
duty, provided they are not disturbed by external influences. 
A juror ordinarily feels the responsibility of his position, and 
is desirous of filling it well. When he sees the accused before 
him, a humanitarian feeling leads him to want to do justice. 

But jurors are greatly hampered by their ignorance. They 
are ignorant, as a rule, of legal procedure and documents. Ex- 
perience is necessary to be able to separate significant from in- 
significant details in the evidence, and this experience most 
jurors lack. Furthermore, jurors know little or nothing about 
crime and criminals. They have not even the empirical knowl- 



THE JUDICIAL FUNCTION 319 

edge that professional judges and lawyers acquire, to say noth- 
ing of a knowledge of criminology. 

This ignorance will frequently disquiet a juror, and he will 
go in search of information. But little information is to be had. 
In England books of instruction to jurors are published which a 
juror may read, and in France a vague printed statement is given 
to jurors which furnishes little enlightenment. Consequently, 
most of the information of a juror is of a haphazard sort, 
much of it coming sometimes from a court attendant. This 
ignorance tends to develop a suspicious attitude on the part 
of the juror towards all those concerned in the trial, towards 
the judge whose exalted position puts a barrier between the 
juror who is a judge of circumstance and the judge of profession, 
towards the lawyers on account of their partizan position, etc. 

Many influences act upon a juror in the course of a trial. 
Perhaps the principal influence is that exerted by the lawyers. 
On account of the ignorance of jurors a skillful lawyer can fre- 
quently deceive them as to the true significance of evidence. 
Consequently, cases are often determined by the respective 
ability of the opposing lawyers to accomplish this deception, 
and not upon the merits of the case. Owing to the influence 
which counsel have over jurors, they will indulge in much ora- 
tory and claptrap in every trial in which there is a jury, thus 
lowering greatly the intellectual standard of the trial. 

The judge has a good deal of influence over the jurors. The 
jury is influenced by its general impression of the judge. If it is 
pleased with the judge, it will usually do what it thinks will 
please him. But if it loses. confidence in the judge on account 
of a mistake made by him, or if it is displeased with his per- 
sonality, it will oppose him as much as possible, owing to its 
distrust or dislike. 

In England the jury has much confidence in the judge, and the 
summing up of the judge is likely to influence the jury greatly. 
In France and elsewhere on the European Continent the sum- 
ming up by the judge has been abolished, because it was be- 
lieved that it influenced the jury too much. This was probably 
due to the tendency of the Continental judge to be partial to 
the prosecution. But the Continental judge is sometimes able 
to influence the jury in another way. In Continental procedure 
the jury may call the presiding judge to its council chamber 



320 CRIMINOLOGY 

in order to consult with him and to ask his advice. Under these 
circumstances the judge is able frequently, if he wishes, to in- 
fluence the jury considerably. This is manifestly wrong, and 
if the judge is to meet the jury at all it should be in the presence 
of the plaintiff, defendant, and counsel for the defendant. 

The jurors may be greatly influenced by the appearance and 
personality of the defendant or plaintiff. For example, in the 
trial of a crime of passion the jury may be moved by the per- 
sonality of the defendant. On the other hand, in the trial of a 
crime against the person the sympathies of the jury may go 
out to the victim of the crime on account of the suffering and 
injury which his or her appearance manifests. The influence 
of the personality of the accused over the jury has led the jury 
to individualize punishment to a certain extent, though this 
individualization has in many cases not been on a rational basis. 

The press and the public sentiment of the moment have much 
influence over the jury. Local prejudices influence the jury 
greatly in its decisions. For example, in a certain community 
the jury will always be more than usually severe upon one crime 
because it is peculiarly obnoxious to that community, while 
towards another crime it may be unusually lenient. 

The trade or profession of a juror is likely to influence him 
in his decisions by giving him a peculiar point of view. The 
juror may have heard of a theory of criminality which he will 
attempt to apply in an unthinking manner. He may regard 
the criminal as the result of heredity, as the fault of society, 
or as morally free and therefore entirely responsible for his acts, 
and, consequently, be guided in his decision by a unilateral 
theory. 

A fundamental trait of the juror is his lack of a power of 
attention. Not being accustomed to follow the proceedings 
of a court, many jurors after the first few minutes fall into a 
semi-conscious state of revery in which they hear little of the 
evidence or arguments. Consequently, the important points 
do not become impressed upon their minds, especially in a long 
trial. Power of attention to legal matters can be developed 
only through training and attention. It is a noticeable fact 
that old judges, owing to their longer experience, usually have 
at the end of a trial a fresher attention than young judges. 

Cases may be classified according to their relative influence 



THE JUDICIAL FUNCTION 321 

upon the jury into those in which the crime has the most influ- 
ence, and those in which the accused has the most influence. 
An illustration of the first type would be a larceny or forgery 
coming before a jury composed largely or wholly of merchants, 
who would be severe on this kind of crime. An example of the 
second type would be a criminal of passion whose personality 
would appeal strongly to the jury. In the latter case the jury 
would tend to individualize, but not so in the former case. 

Criticisms of the Jury 

The contradictory debate varies in different countries accord- 
ing to the nature of the people. In France the tendency is to 
appeal to the passions. In England the tendency is towards 
excessive casuistry. But everywhere an oratorical character 
is given to the debate, and much sentimental claptrap is intro- 
duced because sentiment predominates over reason in the jury. 
The result is that the debate tends to confuse the jury as to 
the main points at issue by obscuring them. 

After the debate comes the summing up or charge to the 
jury of the judge, in which he states the juridical aspects of the 
questions at stake and reviews the main features of the evidence. 
A sober presentation of these facts by the judge has, as a rule, 
a beneficial effect upon the jury, though this summing up has 
been abolished in France and elsewhere on the European Conti- 
nent on account of the danger of the judge being partial to the 
prosecution. 

After the charge from the judge the jury retires to deliberate, 
unless they are able to make a decision immediately. The 
tendency is for the jury to break up at first into knots of two 
or three, discussing the questions at issue rather incoherently. 
Then, as the distinctly formulated opinions begin to appear, 
the discussion becomes more general with the exponents of 
these opinions dominating, the others remaining more or less 
silent. Sometimes, in accordance with the psychology of crowds, 
a single person dominates the remainder of the jury. This 
leader is not necessarily the most intelligent member of the 
jury, but has the most stubborn will by means of which he 
overbears the convictions of the others. He is assisted in ac- 
complishing his purpose in England and America by the neces- 



322 CRIMINOLOGY 

sity of arriving at a unanimous decision. On the European 
Continent only a majority is required, thus permitting of dif- 
ferences of opinion. 

During their deliberations the jury may be influenced by 
the judge, especially on the European Continent where he 
meets the jury alone. The jurors are usually kept carefully 
secluded from the public during their deliberations, though in 
some European countries they are permitted to go out in the 
intervals of their deliberations. This is manifestly wrong, 
since it may result in bribery and other forms of corruption. 
The decision of a jury is final, since there is no way of appealing 
from it. 

There is little guarantee of the incorruptibility of a jury, 
since the giving of a bribe can be detected with great difficulty. 
The juror can accept a bribe with little danger, since he is to 
return to private life very soon, and has no public reputation 
as a judge to sustain. 

The. jury is not always a safeguard of the people's rights and 
liberties against the encroachment of a despot or other central 
authority. On the contrary, history shows us that, owing to 
corruption and intimidation, the jury has often been weakest 
when the central power was most tyrannical. So that the jury 
cannot be regarded as a universal Palladium of liberty, as it is 
sometimes called. 1 

1 Stephen, though an advocate of the jury system, has admitted its weak- 
ness in the face of tyrannical power: "They (juries) are also capable of being 
intimidated, as the experience of Ireland has abundantly shown. Intimida- 
tion has never been systematically practiced in England in modern times, 
but I believe it would be just as easy and just as effective here as it has been 
shown to be in Ireland. Under the Plantagenets, and down to the estab- 
lishment of the court of Star Chamber trial by jury was so weak in Eng- 
land as to cause something like a. general paralysis of the administration of 
justice. Under Charles II it was a blind and cruel system. Under part of 
the reign of George III it was, to say the least, quite as severe as the severest 
judge without a jury could ever have been. The Revolutionary tribunal 
during the Reign of Terror tried by a jury." (J. F. Stephen, A History of 
the Criminal Law of England, London, 1883, Vol. I, p. 569.) 

The jury has failed to resist every kind of tyranny, even that of the peo- 
ple. "In England in the sixteenth and seventeenth centuries, in France 
during the Revolution and the Restoration, the jury has nearly always been 
the faithful servant of the most powerful; it has succumbed to all kinds of 
tyrannies, to that of the throne as well as that of the populace." (R. Garo- 
falo, La Criminologie, Paris, 1905, p. 396.) See also T. W. Earle, The Jury 
Laws and Their Amendment, London, 1882, pp. 1 21-123. 



THE JUDICIAL FUNCTION 323 

The power of the jury to correct the law is in many ways 
a danger. One of the underlying principles of the jury 
is that its moral judgment acts as a corrective of the law. It 
is true that the jury has at times served a useful purpose 
by relieving the rigidity or arbitrariness of a law in its ap- 
plication, or by condemning a law by refusing to enforce it. 
An example of its utility for this purpose is the way in which 
the jury has stimulated the individualization of punish- 
ment. 

But the question may be raised whether the reform of the 
law should belong to a judicial body, since the result is a con- 
fusion of legislative and judicial functions. By refusing to 
enforce a law the jury makes it a dead letter. This power of 
the jury tends to discourage the zeal of those who are trying 
to promote legislative reform. Furthermore, it encourages 
the transgression of the laws by lessening their value in the 
public esteem. It is true that there are some bad laws which 
are not worthy of enforcement. It is also true that in a day 
when the people had little or no legislative power, it may have 
been justifiable to give the jury legislative functions. But 
this is no longer necessary under the present democratic regime, 
and a better means of abolishing bad laws should be de- 
vized. 

The present distinction between law and fact caused inco- 
herence of action on the part of the jury. It is supposed to be 
a judge of facts alone. But it cannot avoid being influenced 
by the personality of the accused, and taking into consideration 
the penal consequences of its verdict, which is a matter of law. 
As its knowledge of the law is exceedingly vague, it cannot give 
an exact expression of its opinion in its verdict. Consequently, 
a jury will sometimes acquit in a case where it believes that the 
accused is guilty, but fears that the penal consequences of a 
verdict of guilty will be heavier than the accused deserves. The 
expedient of permitting the jury to designate extenuating cir- 
cumstances which lessen the penalty was introduced into Eu- 
ropean Continental procedure largely for the purpose of pre- 
venting these acquittals. 

The necessity of securing a unanimous decision in English 
and American courts frequently causes long delays and great 
uncertainty. A unanimous decision is required for the protec- 



324 CRIMINOLOGY 

tion of the accused, in order that he shall not be condemned 
unless all of the twelve jurors have been persuaded of his guilt. 
But there are probably few cases in which the decision repre- 
sents a real unanimity. In many cases the minority yields to 
the majority on account of the pressure brought to bear upon 
it to reach a decision. Even if the decision is not to be by a bare 
majority, as on the European Continent, it might be by eight 
or nine out of twelve. Already in some of the American States 
there is a tendency towards this reform, as where in criminal 
cases less grave than felonies only a three-fourths majority is 
required for conviction. 1 

The number of jurors was hit upon by chance. As has already 
been noted, jurors were originally witnesses, and a consider- 
able number of them were required at that time. A large number 
may also have been needed in the past in order to give the jurors 
courage. But there is no particular reason now why the jury 
should number twelve. A smaller number, as, for example, 
seven, would be much less expensive. It is probable also that 
the discussion in a smaller jury would be more coherent and 
logical than in a larger jury, because its members would come 
into closer touch with each other. 

A system similar to the jury system is that in which a small 
number of citizens sit with the judge as lay assessors, and judge 
both fact and law. In France, where these assessors are called 
Gcheoins, there are a few courts in which this system is used, 
and the same is true in several other European countries. This 
system is used most of all in Germany, where the assessors are 
known as schofen. 

The judge sits sometimes with two, sometimes with four, 
sometimes with as many as six of these assessors. Most of the 
less important crimes in Germany are tried in these courts. 
The lay assessor is more of a judge than the juror, because he 
judges questions of law as well as of fact. But the assessors 
are said to be more or less incompetent, and tend to acquit 
in the cases of crimes which they themselves are liable to com- 
mit. This is to be expected, since they are drawn from much 
the same classes as jurors. However, their decisions are on the 
whole better than those of a jury, because the judge presides 
over their deliberations. Furthermore, there is not so much 
delay in bringing cases to trial as there is before a jury. 



THE JUDICIAL FUNCTION 325 

The jury has been prohibited from judging questions of law 
because it is ignorant of the law. But to judge a question of 
fact is frequently more difficult than to judge a question of law, 
whether it be a question of evidence or of the guilt of a person. 
A judge in deciding a question of law has usually a limited 
number of solutions, and has precedents upon which to base 
his decision. A jury has no precedents and no system of juris- 
prudence upon which to base its decisions, and there are fre- 
quently several possible solutions. And yet it takes specialized 
knowledge to decide these questions of fact just as specializa- 
tion* is needed for deciding questions of law, and it is the prin- 
ciple of specialization that the jury violates. 

I have already described the influence of the jury upon 
the English law of evidence. This law has been devized largely 
for the purpose of protecting the jury against being influenced 
by unimportant testimony. Many kinds of evidence are ex- 
cluded, such as hearsay evidence, notwithstanding the fact 
that the hearsay evidence or opinion of a person of good intelli- 
gence and character may be worth more than the direct evidence 
of a stupid or untruthful person. In France hearsay evidence 
is usually judged by experienced judges who are capable of 
separating the wheat from the chaff, and who are not hampered 
by rules of evidence and case law. The English law of evidence, 
on the contrary, increases the complexity of the procedure, 
and frequently delays its action. Were it not for the jury the 
law of evidence could be much simpler and less rigid. 

It is sometimes contended in behalf of the jury that there is 
.a connection between the suffrage, or making the law, and serv- 
ing on juries, or administering the law. It is said that under 
a democratic regime the people are able to watch over the ad- 
ministration of the laws by means of the jury. But a distinction 
should be made between electoral right and judicial function. 
The jury confuses legislative and judicial functions, and it is 
probably better to have the judicial functions performed by 
judges whose education and intelligence are above the average, 
because the judicial function requires specialized knowledge 
which is not necessary for the electoral right. 

As a school of citizenship the jury disseminates a little legal 
knowledge among the public, but the gain in this direction is 
scarcely sufficient to pay for the expense and trouble it causes 



326 CRIMINOLOGY 

the jurors. Furthermore, constant attempts at evasion do not 
make the jury the "best means of inculcating civic duty" in 
the average citizen. By codifying the law and by educational 
means a knowledge of the law can be disseminated. And if 
the jury results in a maladministration of justice, its utility 
for educating the public cannot be justified. 

Perhaps the principal argument in favor of the jury is that 
it keeps the courts and justice in touch with the public. It 
keeps the professional judge informed as to the state of the 
public conscience, and it judges according to the prevailing 
standard of morality. 1 There may be a few practical reasons 
for keeping justice on a level with the prevailing moral standard, 
in order to keep the people in sympathy with the courts. But 
the administration of justice should also tend to raise the moral 
standard, and to accomplish this it should be superior, as far 
as is practicable, to the ideas and prejudices of the public. 

The preceding considerations clearly indicate that the deci- 
sions of juries are more or less governed by chance. The jury 
system violates the principle of the division of labor, which is 
now applied in nearly every sphere of human activity, because 
it does not utilize specialized knowledge. Science can play 
no part in the deliberations of juries, only common sense and 
rarely ever good sense. And yet the use of scientific methods 
of judging evidence and guilt is imperative. This necessity is 
fatal to the jury system. 

The jury has had an important political aspect in the past. 
It was one of the means by which the people exercized a power 
in the government, though frequently it was not so successful in 
defending the people's rights and liberties as is usually supposed. 
This made the jury a political as well as a judicial institution. 
But these political reasons for the existence of the jury have 
little importance under the present democratic regime, when 
the people have a large legislative power. The old axiom that a 
man should be tried by his peers has little meaning now that a 

1 "From their position in life its members are likely to know more of the 
parties and witnesses, and are consequently better able to enter into their 
views and motives; and from the novelty of their situation they bring a 
freshness and earnestness to the inquiry, which the constant habit of de- 
ciding, adjudicating and punishing dims and blunts more or less in the 
mind of every judge." ( W. M. Eest, The Principles of the Law of Evidence, 
London, 1906, 10th ed., p. 71.) 



THE JUDICIAL FUNCTION 327 

large measure of political equality exists. If this principle were 
rigidly applied criminals would be tried by criminals, children 
by children, etc. 

Probably the sole political value of the jury today is for the 
trial of political crimes, and of press offenses which tend to 
become public and political in their character. It is true that 
in the past the jury has frequently been either servile or rebel 
in political cases. But this will probably become less frequent 
in the future, since tyrannical and despotic power is less likely 
to exist. 

It is evident, therefore, that the jury will be abolished even- 
tually in most criminal cases. This makes doubly important 
the subject of the character and training of the judges who are 
to take the place of the jury. 

The Functions oe the Judge 

The judge holds the highest rank in the legal hierarchy. 
Judicial functions were originally performed by the chief of a 
tribe or the king. Later they were delegated by him to judges 
who frequently were priests. These judges had a judicial power 
equal to that of the king. At first they were not restricted by 
rules of procedure or penal codes. 

In the two typical forms of procedure the judge has had some- 
what dissimilar functions. In the procedure of accusation the 
judge was an arbiter between two private parties. In the pro- 
cedure of investigation he was the representative of society whose 
duty it was to conserve social interests. When public prosecu- 
tion was introduced into the systems of procedure based upon 
the procedure of accusation, the judge acted sometimes as 
counsel for the defense. This was true in English procedure 
until a comparatively recent date. But this function of the 
judge resulted from the temporary derangement of the balance 
between the two parties in a trial by the introduction of public 
prosecution. It is obvious that this is not a proper function for 
a judge, because it puts him in a partizan position. 

The criminal bench of today may be divided into two classes, 
namely, the examining magistrates, and the judges who make 
the final decisions. In England and the United States the ex- 
amining magistrate is also a police magistrate who has the power 



328 CRIMINOLOGY 

of summary trial in some cases. But this power is incompatible 
with the most efficient examination on the part of the magis- 
trate. He cannot be so open-minded and so active in his in- 
vestigation if he knows that he must come to a final decision and 
must, therefore, be constantly weighing the evidence. The 
position of the French juge d'instruction is preferable in this 
respect, because his function is only to examine. His powers 
are probably too arbitrary and too extensive, but his facilities 
for making a careful examination are far superior to those of the 
Anglo-American examining magistrate. 

The judge has exclusive powers of judging only the minor 
offenses in most of the civilized countries, because the graver 
crimes are usually tried by a jury. But in England the right of 
trial by jury is frequently waived by the accused in indictable 
offenses, and in these cases a summary trial by the judge is 
given. In Holland there has never been a jury. A great ad- 
vantage of trial by a judge is the sobriety and -calmness of the 
procedure, because the counsel omit the claptrap and oratory 
which they use before a jury. A visit to a Dutch court shows the 
marked difference between it and courts, in countries where 
juries are used. The counsel are much quieter and more to the 
point in their arguments, and the judges are much more atten- 
tive and take many notes. 

When a trial by jury is in progress the judge has the following 
functions to perform. He has supervision over the taking of 
evidence. In English and American courts the judge interprets 
and applies the law of evidence. In Continental procedure the 
presiding judge conducts the examination, and inasmuch as the 
law of evidence is very rudimentary he has a discretionary 
authority as to what evidence shall be admitted, etc. After the 
examination and contradictory debate in Anglo-American pro- 
cedure comes the charge of the judge to the jury. In his summing 
up of the case the judge is expected to state the law connected 
with the case, and to review the evidence only in so far as is 
necessary for this statement of law. He is not supposed to ex- 
press his opinion, but will frequently reveal it, and is likely 
to influence the jury thereby. 

If the jury brings in a verdict of guilty, the judge pronounces 
the sentence. The power of the judge to decide the penalty has 
been increasing recently. On the European Continent the ex- 



THE JUDICIAL FUNCTION 329 

pedient of extenuating circumstances gives the judge a certain 
amount of latitude in fixing the penalty, and the indeterminate 
sentence does the same in the United States. The suspension 
of sentence and conditional release also increase the power of 
the judge. It has also been suggested that he should be given 
the power of pardoning, but this is scarcely necessary when he 
has the powers of suspending sentence and of conditional re- 
lease. 

The true functions of the judge are to estimate the value of 
evidence, and to prescribe the appropriate treatment. The last 
he should do only tentatively, but his power may be extended 
over the period of penal treatment itself by means of the periodic 
revision of sentences which will be discussed presently. In many 
respects the judges of today are not well fitted to perform 
these functions. 



The Training and Appointment of Judges 

The personnel of the criminal bench is composed almost 
invariably of lawyers with a purely legal training. Some of 
them are members also of the civil bench, where they do most of 
their work. As a result of his exclusively legal training the judge 
of today tends to regard the criminal as a juridical abstraction. 
Dominated as they are by purely legal standards, many judges 
oppose the introduction of the scientific standards of criminology. 
This has caused an antagonism of legal and scientific interests in 
criminal procedure. If the criminal bench could be separated 
entirely from the civil bench, the legal bias of the judges would 
not be so strong, and it would be more feasible to introduce 
scientific methods. 

It is contended by some persons that the professional judge 
tends to see guilt in every accused person. The champions of 
the jury have made much of this criticism, and have undoubtedly 
carried it too far. It is true that a long experience in performing 
judicial functions and the condemnation of many criminals 
may develop in a judge the tendency to regard every defendant 
as guilty. But this is not necessarily the case, and it depends to 
a considerable extent upon the temperament of the judge. 
There are certain features of European Continental procedure 
which encourage this tendency in judges, as, for example, 



330 CRIMINOLOGY 

reading the record of the preliminary examination before the 
trial, and conducting the examination during the trial, but these 
features can and should be changed. The publicity of a trial 
is a check upon the judge, because the public would quickly 
resent any grave partiality of the judge against the accused. 
The decision of a judge is rarely ever the final resort, and many 
guarantees of individual rights exist in the way of appeal, 
revision of sentences, etc., and these guarantees are increasing 
as punishment is becoming more individualized. 

The training which would develop a scientific criminal mag- 
istracy has been suggested in the preceding chapter. There 
should be a special course in the law school for those who wish 
to prepare for this branch of the judiciary. In this course should 
be studied, in addition to the fundamental principles of law and 
the legal aspects of procedure; criminal anthropology, psychol- 
ogy, and sociology; and the psychology of testimony. In connec- 
tion with this course should be held clinics in prisons, hospitals, 
insane asylums, and morgues. 

Then should come some experience in gathering and exam- 
ining evidence in connection with the police force. In this 
fashion would be acquired an acquaintance with police methods 
and the ability to estimate the value of evidence. A temporary 
residence in a penal institution would also be advisable, in order 
to study criminals at first hand and to become acquainted with 
penal methods. The student would now be prepared to take 
part in a trial as counsel. It would probably be preferable for 
him to commence as a public defender in order to avoid all 
possibility of ever becoming prejudiced against the accused. 
After some experience as a public defender he should become a 
public prosecutor, and then alternate between the two at more 
or less regular intervals. This alternation would prevent the 
judge from becoming biased on either side, and would develop 
his ability to judge the value of evidence, because he would 
have to view it from both sides. 

From the ranks of the public prosecutors and public defenders 
would be recruited the judges for the criminal bench. These 
judges would be free from most of the faults of the judges of 
today, and would have the technical knowledge which the jury 
lacks. They would, therefore, be the logical substitutes for the 
jury. 



THE JUDICIAL FUNCTION 33 1 

Today when a judge has sentenced a criminal, he is able to 
dismiss him from his mind. Rarely ever does he have to revize 
his sentence, and then it is usually for a purely legal reason. 
So that the judge is not made to feel keenly the consequences 
of his sentences. And yet he should be fully aware of these con- 
sequences in order to increase his sense of responsibility. He 
should be acquainted with the effects of the sentences he im- 
poses upon criminals. His sense of responsibility would be 
greatly increased if he were given the power of revizing sentences 
periodically, or at least a share in this power. 

In this connection may be raised the question as to whether 
or not a single judge is preferable to a plurality of judges. It 
is asserted in behalf of the single judge that he feels entirely 
responsible for his acts, while a plurality of judges tends to 
destroy the feeling of responsibility of each judge. The single 
judge, therefore, uses greater care in his decisions, and is gov- 
erned by a higher moral standard. For these reasons the single 
judge would probably be preferable in most cases. In some cases 
it might be advisable to have several judges each of whom would 
be a specialist in a branch of knowledge which contributes to 
making a wise decision in a complicated case. Such a board of 
judges would correspond to a jury of experts, and would give 
a consensus of opinion upon the case under examination like 
a consultation of doctors. 

In this country recently there has been a tendency to encour- 
age juvenile court judges to specialize in that field of judicial 
work. There are temperamental and other differences between 
judges which render some of them more adapted to juvenile 
court work than the others. But it is questionable if it would be 
desirable to develop a special type of juvenile court judge. It 
is probably advisable that the same judges try both juvenile 
and adult cases. Just as a physician, in order to understand the 
diseases of adults, needs to know something about the diseases 
of children and vice versa, so it is that a judge, in order to be 
able to judge juvenile criminals, must understand adult crim- 
inals and vice versa. In fact, it is doubtful if it is desirable to 
have any special types of judges. All judges should have a 
training sufficiently broad to enable them to judge wisely any 
type of crime and of criminal. 

The conservation of the independence of the criminal bench 



332 CRIMINOLOGY 

will become still more important when trial by jury has been 
abolished. In the lower grades of the juridical hierarchy in 
which the judge holds the highest rank the choice of men for 
positions would have to be by examination. But in the higher 
ranks an examination would not be an adequate test. In 
Europe judges are usually appointed for life by the government. 
The permanent tenure of office gives them a considerable amount 
of independence. But they are nevertheless under the influence 
of the executive power to a certain extent, because their ad- 
vancement depends upon the executive. In the United States 
the tendency has been towards the election of judges. A serious 
objection to this method of choice is the temporary tenure of 
office, though this objection has been partly obviated by making 
the terms very long. 

If the criminal magistracy is to become a special profession, 
it is absolutely essential that the tenure of office should be more 
or less permanent. Otherwise it will be impossible to induce 
suitable candidates to acquire the training for the profession. 
But if the choice of the judges is left to the more or less uncertain 
method of popular election, their tenure of office will be very 
precarious. It is, however, hard to determine by whom the 
choice is to be made, whether by the executive power or by the 
legislative power. The judiciary should not be too much under 
the influence of any one branch of the government. A method of 
choice will have to be developed which will safeguard the judi- 
ciary from domination by any other branch of the government. 
The higher judges will probably be appointed from the lower 
judicial ranks by the executive power with the consent of the 
legislature. The judges in the lower ranks can be chosen at 
least in part by the judges in the higher ranks. 

The Control of the Judiciary . 

At the same time it is essential that the judiciary should be 
under an efficient control. It happens all too frequently at the 
present time that judges exceed their powers and violate the 
law. Furthermore, the criminal judges are much given to de- 
livering moral homilies to convicted persons and others who 
appear before them which partake of the nature of obiter dicta. 
These utterances are usually colored by class and religious prej- 



THE JUDICIAL FUNCTION 333 

udices which render these utterances insulting to those towards 
whom they are directed and offensive to impartial observers. 
The autocratic position of the judge in his own courtroom in- 
evitably tends to develop in him a pontifical manner and a feeling 
of infallibility which should be carefully checked. This is pe- 
culiarly true of the relatively untrained and comparatively 
incompetent judges who are chosen under our present system. 

When the judges are adequately trained for their positions 
these evils will disappear in large part. The judges will then 
comprehend the causes of the criminality of those who are ar- 
raigned before them, and will no longer indulge in puerile and 
futile admonitions to goodness. But it will still be necessary 
to maintain checks upon the judiciary. The bench can be or- 
ganized in such a fashion that it can furnish its own discipline 
to a considerable extent. The upper ranks of the judicial hier- 
archy can supervize the work of the lower ranks. Public im- 
peachment could be used in extreme cases, and would serve as 
a control over the supreme judges. Impeachment could be 
exercized most effectively ordinarily by means of a board of 
discipline composed of high executive, legislative, and judicial 
officials. Inasmuch as such a disciplinary board would repre- 
sent all branches of the government, it would be impartial when 
exercizing its power over the judiciary. 

In this country recently some use has been made of the popular 
recall of judges and of judicial decisions to serve as a check upon 
the judiciary. 1 There can be no question that the judiciary 
has acquired an egregiously excessive power in this country. 2 
The popular recall of judges and especially of judicial decisions 
doubtless are valuable democratic devices for restraining the 
courts from deciding important political and social questions 
and from judicial legislation by means of an abuse of the power 
of interpreting the law. But these abuses of judicial power take 
place almost exclusively in the civil courts. So that there is 
scarcely any need for the popular recall in the criminal courts, 
and it would be highly undesirable to subject the criminal magis- 
tracy and their decisions to. the popular recall, because it would 

1 See, for example, J. D. Barnett, The Operation of the Initiative, Referen- 
dum, and Recall in Oregon, New York, 1915. 

2 See, for example, C. G. Haines, The American Doctrine of Judicial Su- 
premacy, New York, 19 14. 



334 CRIMINOLOGY 

make their tenure of office precarious and criminal justice un- 
certain. 

The gradual elimination of the jury and the increasing in- 
dividualization in the treatment of the criminal will greatly 
enhance the importance of judicial functions. These facts in- 
dicate the supreme importance of an able and efficient criminal 
magistracy. In order to attract to it the men of the best ability, 
it will be necessary to offer adequate remuneration and per- 
manency of employment. These will be guarantees also against 
the danger of bribery. The training outlined above will give 
them the necessary special knowledge. These judges will gather 
many scientific facts which the judges of today are incapable 
of comprehending. These facts will be of the utmost value in 
developing the science of criminology and increasing its applica- 
tions to procedure. Upon the decisions of these judges will be 
based a system of jurisprudence which, though it can never be 
as exact as a jurisprudence based upon a penal code, will never- 
theless increase the wisdom and certainty of decisions as time 
goes by. 



CHAPTER XXI 
THE POLICE FUNCTION 

The police and the army — Police organization and administration: national 
and local police control; the rural police — The functions of the police - 
The training and selection of the police force — The integrity of the 
police — Evil influence of unenforceable laws against vice — Homicide 
in the United States — Arrest — Preliminary detention — Provisional 
liberation — Indemnification for mistaken detention and prosecution. 

The police power of the state is one of the most important 
functions of the executive branch of government. It enforces 
the dictates of the legislative and judicial branches of govern- 
ment, and, consequently, includes a great variety of powers. 
Among these are the repression of crime, the regulation of public 
morals, the maintenance of public order, the protection of the 
safety and health of the public, the control of the dependent 
classes; and the regulation of various economic conditions and 
activities, such as the protection of debtors, the protection of 
laborers, the prevention of fraud, the regulation of combinations 
of labor and of capital, the control of corporations, etc. 1 

The police function of the state has been performed in various 
ways in the past. The army has usually taken an important 
part in enforcing the law. Private citizens have frequently 
been forced to take turns in serving on watch duty, and to assist 
in capturing criminals as members of a posse comitatus. 2 But 
within the past century or two regular police bodies have come 
into being in all civilized countries, which have usually evolved 
out of the army. 

The police power is the strong arm of the state by means of 
which it ordinarily enforces its laws. In time of war and under 

1 Cf. E. Freund, The Police Power, Chicago, 1904. 

2 In Saxon England prevailed the "frankpledge" system, according to 
which the members of each tithing, or group of ten, were responsible for 
any offense committed by one of its members. See W. A. Morris, The Frank- 
pledge System, New York, 1910; W. L. M. Lee, A History of Police in Eng- 
land, London, 1901. 



336 CRIMINOLOGY 

martial law the military power may supersede it. But in civil- 
ized countries it is the customary means of enforcing the will 
of the state. There could be little repression of crime without an 
organized police force, for without such an organization all of 
the repressing would have to be done by private citizens, most 
of whom are unprepared and unfitted for such work. As a 
matter of fact, criminals have been rampant in the past, 1 and 
are so usually today in frontier and barbarous communities. 
In our frontier communities it has usually been found neces- 
sary to organize vigilance committees to repress criminals and 
maintain order until a police force could be organized. Even 
in our civilized communities the direct social cost of criminal 
activities in persons killed and injured and property stolen and 
destroyed is very great. 2 

Police Organization and Administration 

The manner in which the police has been organized in each 
country has depended somewhat upon the nature of the govern- 
ment. In the countries where the government is highly cen- 
tralized the police is usually controlled by the central govern- 
ment, so that the local communities have little to say with 
regard to the police protection which they receive. This is in- 
variably the case in autocratically and oligarchically governed 
countries, where the police constitutes a powerful weapon in 
the hands of the monarch or ruling class. Germany and Russia 3 
are two countries in which the control of the police is highly 
centralized, and is frequently used as a means of oppression. 

In the countries where the government is more or less decen- 
tralized, which are invariably democratically governed, the 
police is ordinarily controlled by the local communities. The 
two principal examples of this type of police administration are 
England and the United States. 

1 See, L. O. Pike, A History of Crime in England, 2 vols., London, 1873-6. 

2 See, for a discussion of the aggregate amount stolen by professional 
criminals in this country, J. Flynt, The World of Graft, New York, 1901, 
pp. 148-190. 

See, for an estimate of the cost of penal repression in the State of Massa- 
chusetts, W. F. Spalding, The Money Cost of Crime, in the Jour. Crim. Law, 
Vol. I, No. 1, May, 1910, pp. 86-102. 

3 The above statement was written previous to the Russian Revolution 
of 19 1 7 which has lessened materially the power of the police in Russia. 



THE POLICE FUNCTION 337 

It goes without saying that in so far as centralized police 
control leads to the use of the police power for autocratic and 
oligarchic ends, and to the violation of fundamental human 
rights and liberties, it is to be condemned. l Furthermore, even 
when a country is democratically governed, though the govern- 
ment is highly centralized, as in France, local police control is 
better in some respects, since each community can judge best for 
itself its own needs. 

On the other hand, there are some advantages in centralized 
police control, provided it is not used for purposes of oppression. 
A national police administration can in many respects be more 
efficient in the repression of crime. Many criminals travel 
around a good deal, and a national police can keep track of them 
and check their activities more effectively than local police 
bodies. Furthermore, a national police organization can keep 
in closer touch with similar organizations in other countries, 
thus making more effective the international repression of crime 
It is also asserted sometimes that the police should be controller 
by the central government, because many of the laws to be en 
forced have been promulgated by the central government. This 

1 A careful observer has characterized the autocratically controlled Ger- 
man police in the following terms: — 

"The autocratic spirit of the German government is reflected in the im- 
perviousness of the police to public opinion. The police department is a 
specialized institution in the details of which the people are held to have 
no proper interest. Not only are police records withheld from public scru- 
tiny, but in the state-controlled forces no information of any kind relative 
to administration is ever vouchsafed to the citizens. Indeed, he would 
be a valiant man who would ask for it." (R. B. Fosdick, European Police 
Systems, New York, 191 5, p. 77.) 

"The general attitude of the police toward the public is also indicative 
of the autocratic spirit of the German government. The unfailing courtesy 
of the English police is often lacking in the German forces. Arbitrariness 
too frequently marks the conduct of the latter in their relations with the 
public. The great powers of the police official, his right to fine and imprison 
without judicial process, his exemption from prosecution for false arrest, 
breed an arrogance hardly to be tolerated in democratic communities. To 
be sure, the temper and character of the Teutonic people are attuned to 
this kind of stern management. They seem even to demand it. If it be 
true, as has been asserted, that a Berlin Schutzmann in Trafalgar Square 
would provoke a riot in two hours, it is equally true that the peaceful- 
mannered London 'Bobby' would be overwhelmed in Berlin. Back of the 
sharp contrasts between the English and German police are fundamental 
differences in race-history and national character." (Op. cit., pp. 78-79.) 




33^ CRIMINOLOGY 

is true in a measure, though there are some advantages in an 
administration of the national laws by the local authorities, be- 
cause it then becomes more feasible to adjust to local needs laws 
which are not well adapted to conditions in all parts of the 
country. 

In this country the police has been almost entirely under 
local control. The Federal Government maintains a small 
detective force for the enforcement of the Federal laws. A few 
of the States maintain small police organizations. The metro- 
politan police of a few of the large cities is administered by the 
;.- State government. But aside from these exceptions the munic- 
* S. iP a l P once forces are controlled by the municipal governments, 
^and the county police forces by the county governments. 
jjf There is probably no valid objection to the Federal detective 
m bureau, so long as it limits its activities to the enforcement of the 
Federal laws. The State police bodies have usually been estab- 
lished for the purpose of detecting and repressing crime in the 
rural districts. There is no doubt that the rural districts have 
not usually had efficient police protection, so that the State 
police has been useful for the repression of rural crime. It has 
also been used in the place of the militia for the suppression of 
labor riots and similar disturbances. This also is a legitimate 
use for a State police, when it does not exceed its powers in so 
doing. There is, however, more or less evidence that it has 
sometimes been used for the suppression of strikes in the in- 
terests of employers. This is the unenviable reputation of the 
Pennsylvania State Constabulary. 1 Members of the State 
police in several States have at times been guilty of brutal con- 
duct which has earned for them the title of the "American Cos- 
sacks." 

It goes without saying, that lawlessness and brutality are not 
limited to the State police. The militia have frequently been 
guilty of similar conduct when called out to perform police duty, 

1 Numerous instances of brutal and illegal acts in the suppression of 
strikes by the members of this State police force are described by C. A. 
Maurer, The Constabulary of Pennsylvania, Reading, Pa. See also H. W. 
Laidler, Boycotts and the Labor Struggle, New York, 1913, pp. 20-25. 

The opposite side is stated by Katherine Mayo in a book which furnishes 
much information, but is too eulogistic and not sufficiently critical. (Kath- 
erine Mayo, Justice to All, The Story of the Pennsylvania State Police, New 
York, 19 1 7.) 



THE POLICE FUNCTION 339 

and the same is true of the municipal police. The militia are 
not under constant discipline, and it is, therefore, not altogether 
surprizing that they should be somewhat disorderly. On the 
other hand, they are usually in close touch with the people and 
have more or less sympathy with the workers, at the time of a 
strike. 

The regularly constituted police organizations, such as the 
State and the municipal police, should be under thorough dis- 
cipline, and should be directed to enforce the law without any 
class discrimination. Where they are lawless and brutal, it is 
due to the fact either that they are not well disciplined, or are 
being used in the interest of a class. The latter seems to be the 
explanation of the lawless conduct of the State police in several 
States. The true remedy, however, is not to abolish them en- 
tirely, as has been advocated by some of the representatives of 
labor, for they are needed in some parts of the country to protect 
the rural inhabitants. There are also occasions when they can 
be legitimately used in connection with industrial warfare, to 
quell rioting, to prevent the destruction of property, etc. The 
representatives of the people, therefore, in the legislature and in 
the gubernatorial chair should see to it that no class in the com- 
monwealth gains control of the State police in order to use it for 
unlawful purposes. 

The State control of the metropolitan police in some of our 
large cities, such as Saint Louis and Boston, has usually arisen 
because the municipal government has been corrupt and in- 
efficient, or was supposed to be so by the inhabitants of the 
State. In many of these cases this has doubtless been true. 
And inasmuch as the large cities constitute hiding places for 
the criminals who operate throughout the State, there is much 
justification for a State supervision and control over the metro- 
politan police in order to insure its efficiency. On the other 
hand, some injustice is done to the urban population by taking 
away from it the control over its own police force. 

In this country, with its decentralized form of government, the 
control of the police is destined to be local in the main, unless the 
government becomes much more centralized. The local police 
authorities should, however, cooperate with each other as much 
as possible in order to make the repression of crime nation-wide 
in its efficiency. 



34° criminology 

The Functions of the Police 

The functions of the police are as numerous as the powers 
which are given to them by the law. We may classify them 
broadly as follows: 

i. To apprehend criminals. 

2. To protect the innocent. 

3. To perform various tasks in behalf of the safety and wel- 
fare of the public. 

The apprehending of criminals has become a veritable art in 
itself in which many of the sciences are utilized. Whenever a 
crime has been committed, it becomes essential to conserve and 
interpret all of the available evidence, which may include cloth- 
ing, parts of the human body, imprints upon bottles, footprints, 
etc. In fact, any object may at some time or other become a 
piece of evidence in a criminal case. 

When the criminal or person accused of the crime has been 
captured, it becomes necessary to identify him.- But for this pur- 
pose various methods of identification have been devized, such 
as the anthropometric and the dactyloscopic or fingerprint 
methods. 1 The fingerprint method is rapidly becoming the 
principal means of identification because of its accuracy and the 
ease with which it can be applied. Having secured these facts, 
it is the duty of the police to present them in court in order that 
the evidence may be examined and judged by the judicial au- 
thorities. 

But it is the duty of the police not only to capture the guilty, 
but also to protect the innocent. The latter is a duty which the 
police are apt to forget in their zeal to apprehend criminals. As a 
matter of fact, it is almost if not quite as important that human 
rights and liberties should be safeguarded and conserved as it is 
to apprehend criminals. Consequently, it is essential that the 
police should be given a training in political science and law 
which will enable them to comprehend these rights and liberties, 
and should be kept under a rigid discipline which will restrain 
them from overstepping the bounds of their legitimate powers 
and prerogatives. 

1 1 have described these methods of identification and many other police 
methods in the chapter on the police agency in my book entitled The Prin- 
ciples of Anthropology and Sociology in Their Relations to Criminal Pro- 
cedure, New York, 1908. 



THE POLICE FUNCTION 341 

The third group of functions includes various tasks in behalf 
of the safety and welfare of the public. Among the earliest of 
these tasks have been the regulation of traffic upon the public 
highways, and the maintenance of order in crowded public 
places. But in recent years there has been a strong tendency to 
assign to the police numerous tasks in connection with sanita- 
tion, the census, the regulation of labor conditions, etc. This 
tendency has resulted from the vast amount of legislation in 
behalf of social welfare which has been enacted recently. It is 
desirable that the police should be used as much as possible for 
these purposes, so long as these tasks do not interfere with their 
primary functions of repressing crime and maintaining order. 

In fact, there is no reason w T hy policemen should not become 
exceedingly useful public servants far beyond their present use- 
fulness. Each policeman should, instead of idling along his 
beat, be engaged in becoming well acquainted with his neighbor- 
hood, and should serve as an agent and representative of the 
government in many important respects. This would develop 
in him a feeling of responsibility and a genuine dignity which 
he now usually lacks, and would serve as a safeguard against the 
anti-social attitude which he frequently acquires. 

As the strong arm of the state the police is entirely or mainly 
under the direct control of the executive branch of the govern- 
ment. But the judiciary also usually has a certain amount of 
control over the police, while the legislature through its legisla- 
tive power can indirectly influence the police greatly. It is 
desirable that the police should be mainly under the direct con- 
trol of the executive, for direct control by the legislature would 
make the police more or less ineffective, while it is dangerous to 
confuse the judicial functions of the courts with executive func- 
tions. 

The Training and Selection of the Police Force 

In this country it has been customary to choose the higher 
police officials from the civilian class. It is rarely ever desirable 
to choose these officials from the ranks of the policemen, be- 
cause they lack the necessary preliminary education, while the 
routine police work unfits them in some ways for the higher 
positions. But it has unfortunately been true in this country 



34 2 CEIMINOLOGY 

that civilian officials have frequently been chosen for partizan 
political reasons, and not on account of their efficiency. This 
has been true not only where there has been a single head or a 
partizan police board, but even where there has been a bi- 
partizan board. 

In Europe the police officials have ordinarily had more train- 
ing and special experience for police work. Frequently army 
officers have been placed in these positions. But while the mil- 
itary training is useful in some ways for purposes of discipline, 
there is always the danger of introducing the military point of 
view in dealing with police problems. In a few countries, as, 
for example, in Germany, many of the higher police officials 
have had special training in political economy and administra- 
tive law. These men have made the police their profession, and 
doubtless constitute the best trained group of police officials in 
the world. 

What is most needed is an extension of this special training. 
These police officials should come from a group of men who are 
specially trained not only for the police profession, but also to 
become judges in the criminal courts, and administrators of 
prisons. These men should receive a thorough education in 
political, economic, and social science, in law, and in criminology. 
Then they should have a preliminary experience in the courts, 
in the police department, and in the prisons. After this expe- 
rience they should be assigned on the basis of aptitude and liking 
to the branch for which they are best fitted. Some of them 
would become public prosecutors and defenders and eventually 
judges, some of them prison officials and administrators, and 
some of them police officials. The preliminary experience in 
all of these lines of work would prepare them for everything 
which has to do with crime and criminals. At present most of 
those engaged in performing these functions are not specially 
prepared for their tasks, and have little knowledge of each other's 
work, despite the intimate relation which exists between their 
respective functions. 

The subordinate positions can be readily filled from the ranks 
of the policemen. With respect to the qualifications for the 
men in the ranks, it is needless to say, to start with, that they 
should have a requisite amount of strength, a good moral char- 
acter, and a fair degree of intelligence. But some special educa- 



THE POLICE FUNCTION 343 

tion and training in addition is essential. After the preliminary 
examination has been taken the police recruit should be given 
a course of instruction covering several months. This course 
should furnish him an elementary knowledge of criminal law, 
an acquaintance with the methods of identifying criminals, 
and a sufficient knowledge of the nature of legal evidence to 
enable him to gather evidence and to protect it from destruction 
until it can be examined by the judicial authorities. 

From the uniformed force the best men should be selected to 
become the subordinate officers and the detectives. These men 
should be given additional training in law, police methods, and 
in criminology. They should acquire some knowledge of crim- 
inal anthropology and psychology, which will enable them to 
distinguish between the different types of criminals, and to 
understand the principal methods used by criminals. The work 
of these police officers will be much more effective when they 
can discern the difference between an occasional criminal and 
a professional criminal, between an insane criminal and a crim- 
inal by passion, while a knowledge of criminal methods will 
enable them to check much more frequently the activities of 
criminals. 1 

The science of criminology contains a rich store of information 
for the police. The study of this science should, of course, be 
supplemented with practical experience in the field. The police 
will accomplish most effectively their function of repressing 
crime when they apply scientific knowledge and practical expe- 
rience to the work of foiling the activities of criminals. More or 
less practical experience many of them already have, but they 
have not yet used scientific knowledge to any great extent. 2 

1 Perhaps the leading if* not the only school of this nature is the school 
for the scientific police in Rome. Its curriculum is described briefly by its 
director as follows: ''Besides description (Bertillon system and dactyloscopy) 
and legal photography, the principal courses consist in judicial investiga- 
tions and applied anthropology and psychology. Both of the latter are 
taught according to the above mentioned principles, resulting in a complete 
reform in police methods. The course is given with the help of convicts in 
the prison, in the proximity of which the school is located." (S. Ottolenghi, 
The Scientific Police, in the Jour. Crim. Law, Vol. Ill, No. 6, March, 1913, 
p. 880.) 

2 Fuld says that in order to become acquainted with the professional 
criminal the policeman "should study his habits of life, his personal charac- 
ter, and his business methods as carefully as the hunter studies the charac- 



344 CRIMINOLOGY 

A few of the cities in this country maintain police schools, 
and there are a number of such schools in Europe. 1 It is doubt- 
ful if the training in any one of them is as thoroughgoing as it 
should be, while many more of them are needed. It is to be 
hoped that before long every policeman will receive adequate 
preparation before he is entrusted with the important public 
duties of protecting society from crime and of maintaining order. 

The Integrity of the Police 

The efficiency of the police depends not only upon its training 
but also upon its integrity. One of the most difficult of police 
problems is the safeguarding of the integrity of the police. This 
is because there are many individuals to whose interest it is to 
corrupt the police. Among these are the criminal classes who 
wish freedom to carry on their criminal activities, the vicious 
classes who wish freedom to carry on vicious activities which 
are forbidden by the law, and also a good many citizen^ who are 
not necessarily or ordinarily criminal or vicious, but to whose 
pecuniary interest it is to violate various regulations and or- 
dinances promulgated by the government. 

The police are therefore in constant danger of being tempted 
by bribes and other inducements to refrain from doing their 
duty. In fact, the police department is perhaps the most vul- 
nerable point in the honesty of a government. This has been 
well illustrated in the government of many of our cities. Munic- 
ipal government in this country has been notoriously corrupt. 
This corruption has usually demoralized the police department 
first of all, and frequently more than any other department. 2 
While police corruption may not in the long run do as much 

ter and habits of the animal he hunts. He should become intimately ac- 
quainted with the criminal's inner consciousness and point of view; in no 
other way can he hope to develop skill in defeating his criminal purposes." 
(L. F. Fuld, Police Administration, New York, 1909, p. 151.) 

1 Some of the European police schools are described by R. B. Fosdick, 
op. cit., pp. 211-226. 

2 See, for example, the Report of the Senate Committee Appointed to In- 
vestigate the Police Department of the City of New York (The Lexow Commit- 
tee), Albany, 1895, 5 vols.; Minutes of the Police Investigation by the Special 
Committee of the New York Board of Aldermen, New York, 1912-1913; Re- 
port of the City Council Committee on Crime of the City of Chicago, Chicago, 
1915- 



THE POLICE FUNCTION 345 

harm to the public as some other forms of corruption, such as the 
granting of public franchises to private corporations without 
adequate remuneration, it is nevertheless a prolific source of 
evil. It is an essential part of any widespread system of " graft" 
in government, for the corrupt political "bosses" and officials 
need the strong arm of the police to carry out most of their 
dishonest designs. 1 

The first and foremost preventive of police corruption is the 
promotion of honesty in the government in general. Specific 
measures which may be used are to remove the administration 
of the police as far as possible from partizan politics, to make the 
tenure of office in police positions permanent, and to make the 
remuneration of the police adequate to satisfy ordinary needs 
and reasonable desires, thereby diminishing as far as possible the 
incentive to supplement their pay by means of dishonesty and 
failure to perform their duty. 

Evil Influence of Unenforceable Laws Against Vice 

Another factor for police corruption in this country has been 
the existence of numerous unenforceable laws. These laws have 
been enacted partly as a result of the Puritanical ideas which 
are more or less prevalent in this country, and which have given 

1 A first hand observer has described the world of graft and its grafters 
in the following graphic language : — 

"A 'grafter' is one who makes his living, and sometimes his fortune, by 
'grafting.' He may be a political 'boss,' a mayor, a chief of police, a warden 
of a penitentiary, a municipal contractor, a member of the town council, a 
representative in the legislature, a judge in the courts, and the Upper World 
may know him only in his official capacity; but if the Under World has had 
occasion to approach him for purposes of graft and found him corrupt, he 
is immediately classified as an ' unmugged ' grafter — one whose photograph 
is not in the rogues' gallery, but ought to be. The professional thief is the 
'mugged' grafter; his photograph and Bertillon measurements are known 
and recorded. 

"The World of Graft is wherever known and unknown thieves, bribe- 
givers, and bribe-takers congregate. In the United States it is found mainly 
in the large cities, but its boundaries take in small county seats and even 
villages. A correct map of it is impossible, because in a great many places 
it is represented by an unknown rather than by a known inhabitant, by a 
dishonest official or an unscrupulous and wary politician rather than by a 
confessed thief, and the geographer is helpless until he can collect the facts, 
which may never come to light." (J. Flynt, The World of Graft, New York, 
tooi.) 



346 CRIMINOLOGY 

rise to the desire to prohibit many vicious and so-called vicious 
practises. But they are due perhaps still more to the general 
notion that almost anything in the way of enforcement or of 
prohibition can be accomplished by means of legislation. As a 
comparatively new country addicted to hasty experimentation, 
we have not had as much experience as older countries which 
would give us national traditions concerning the folly of such 
legislation. 

There have been several evil results from this legislative 
tendency which are of importance with respect to the police. 
In the first place, it has created a general disrespect for law. 
This situation has inevitably reacted upon the police to make 
them careless and indifferent to the enforcement of law in gen- 
eral. 

In the second place, it has put on the statute books many 
laws which are not approved of by a considerable portion of the 
population. Whenever the majority has believed that a certain 
form of conduct should be prohibited on the ground that it is 
immoral and vicious, it has usually seen fit to do so, regardless 
of the fact that a powerful minority might succeed in nullifying 
it in practise. This situation has been greatly aggravated by 
an enormous immigration from many countries differing con- 
siderably from each other in culture and moral standards. 
This immigration has created a racially heterogeneous population 
with diversified ideas as to the morality of many forms of con- 
duct. 

In the third place, this legislative tendency weakens public 
sentiment in behalf of the rights and freedom of the individual. 
It blunts the fine sense of respect for the individuality of others 
which permits the personality to develop as spontaneously as 
possible, even though the individual will frequently do himself 
injury in so doing, in the belief that a high degree of freedom is 
in the long run preferable to a large amount of regulation. It 
encourages the unthinking spirit of the mob which attempts to 
force every one into a common mold. 

In the fourth place, largely as a consequence of the above- 
mentioned conditions many of these laws furnish an admirable 
means of blackmail for the police. This is because, while they 
are in the main unenforceable, they can be used by the police 
as a club with which to extort bribes and hushmoney. For 



THE POLICE FUNCTION 347 

example, a law with respect to the liquor traffic or sabbath ob- 
servance may be so obnoxious to a large part of a community 
that it would be impossible for the police to enforce it univer- 
sally. But the police can use the law as a threat to harry individ- 
ual violators into paying them tribute for refraining from ar- 
resting them and securing their conviction. There are many 
laws upon our statute books which are practically dead letters 
so far as enforcement is concerned, and yet furnish the police 
an enormous amount of unlawful revenue. 1 

Upon the basis of these laws an elaborate system of levying 
tribute upon their violators arises. A more or less definite 
tariff becomes established according to which the liquor dealer, 
the gambler, the prostitute, the theatrical manager, etc., pay for 
the privilege of violating these laws. This tribute is collected 
usually by patrolmen or subordinate police officers, and is trans- 
mitted by them to the higher police officials. Each member of 
the police force who comes in contact with the graft profits by 
it, and thus a large part of the force is corrupted. 

Nor does the iniquitous influence of these laws necessarily 

1 According to the report of the Chicago committee on crime, the profes- 
sional gamblers in that city were paying $50 a week for police protection 
for each of the "handbooks" operated. As it was estimated that there were 
300 of these books, the total amount paid annually to the police in this form 
of graft alone would aggregate nearly $800,000. {Op. cit., p. 166.) 

Goodnow has characterized the effect of these laws upon the integrity 
of the police as follows : — 

"One of the results of attempting to determine the criminality of an act 
by its viciousness has been to force upon the police of cities in the United 
States work which, under the standards of morality prevailing in the cities, 
it is practically impossible for them to perform. . . . Public opinion seems 
to justify the passage of statutes upon the enforcement of which that same 
public opinion does not insist. The result is a temptation for the police 
which human nature is hardly strong enough to resist. The police force 
becomes a means by which the whole city government is corrupted. There 
has never been invented so successful a 'get-rich-quick' institution as is to 
be found in the control of the police force of a large American city. Here 
the conditions are more favorable than elsewhere to the development of 
police corruption, because the standard of city morality which has the 
greatest influence on the police force, which has to enforce the law, is not 
the same as that of the people of the state as a whole which puts the law 
on the statute book. What the state regards as immoral the- city regards 
as innocent. What wonder then if the city winks at the selling by the 
police of the right to disobey the law which the city regards as unjustifiable? " 
XF. J. Goodnow, Municipal Government, New York, 1910, pp. 265-266.) 



34$ CRIMINOLOGY 

stop with the police department. It has frequently happened 
that some of this graft has passed on to officials in other execu- 
tive branches of the government, to judges, and to legislators. 
So that the integrity of every branch of the government has been 
stained and its efficiency weakened by the influence of these 
laws. 

The responsibility for these laws does not rest upon the legis- 
lators alone, many of whom indeed are well aware of the folly 
of this legislation. It must rest largely upon a narrow-minded 
but influential portion of the public which brings much pressure 
to bear upon the legislators * to enact such legislation. This 
portion of the public is represented through such private organi- 
zations as societies for the suppression of vice, the churches and 
other religious organizations, the social hygiene associations, 
the anti-saloon leagues, and similar organizations of a senti- 
mental nature. Having secured the desired legislation this 
portion of the community sits back in smug complacency at 
having registered its protest at these vices and alleged vices 
and thus satisfied its conscience, regardless of the fact that these 
laws are in the main unenforceable, and that they are certain 
to demoralize to a considerable extent the police and other 
branches of the government. 

It would be much preferable not to have these laws at all, 
since they do no good and are potent forces for corrupting and 
debasing the police. It is hardly necessary to add that they also 
do a vast amount of injury by spreading disrespect for law in 
the population at large, and by making potential if not actual 
criminals of those who pay the blackmail and hushmoney to the 
police. As a result of placing the stigma of criminality un- 
necessarily upon many persons who may be vicious but are not 
criminal to start with, they degrade all of them, and drive some 
of them to consort with professional criminals, and to become 
criminal in turn. 

The political reform movements in the cities and sometimes 
in the states in this country well illustrate these errors in the 
treatment of vice. These movements are usually accompanied 
with a good deal of emotional exaltation. Under the influence 
of this state of feeling the moral enthusiasm of the reformers 
leads them to pass drastic laws against the different vices and 
alleged vices, and to make abortive attempts to enforce these 



THE POLICE FUNCTION 349 

laws. These attempts invariably fail for the reasons which have 
been mentioned. But what is much worse is that by getting 
these unenforceable laws upon the statute books the reformers 
have created powerful instruments for blackmail, bribery, and 
police corruption when the administration of these laws pass into 
the hands of those who are prone to commit these crimes. 1 

Ugly and harmful though the genuine forms of vice are, it is 
not to be expected that they can be abolished in a day. The 
genuine forms of vice are those that detract from the spontaneous 
expression of human nature, in so far as this expression is com- 
patible with the conditions of social life. Many of the modes 
of conduct alleged to be vicious by the moral reformers cannot 
be regarded as such when judged by the above criterion. But 
neither the genuine nor the alleged vices can be uprooted at 
once, for they arise out of fundamental traits of human nature 
and of the material and social conditions in which men and 
women live. Inasmuch as human beings are prone to resent 
wholesale attempts to make them moral when they are not 
trespassing in an obvious manner upon the rights of others, 
there is usually a serious reaction after the failure of such an 
attempt which serves as a setback to social progress. 

They have learned to deal more wisely with vice in Europe. 
There they do not usually attempt to enforce morality in private 
matters by means of the law. In fact, even in some of the au- 
tocratically and oligarchically governed countries there is more 
liberty in many personal matters than there is in this country. 
There are also fewer unenforceable laws to corrupt the police, 
and this is one reason why the European police is on the whole 
more honest than our police. 2 

1 See, for descriptions from practical experience of the harmful effects of 
reform movements in our cities, A. Hodder, A Fight for the City, 1903; 
B. Whitlock, On the Enforcement of Law in Cities, Indianapolis, 1913. 

See especially in Hodder's book Chapter V entitled "The Alliance be- 
tween Puritan and Grafter," in which he shows how the Puritan by his 
uncompromizing position unconsciously helps the grafter. 

See also two articles by W. J. Gaynor on the lawlessness of the police, in 
the North American Review, Vol. CLXXVI, 1903; and an article by Sydney 
Brooks entitled Tammany Again, in the Fortnightly Review, Dec, 1903. 

2 Fosdick calls attention to this repeatedly, as, for example, in the follow- 
ing passage: — 

"Perhaps the most important safeguard against police corruption is nega- 
tive in character. The European police are not called upon to enforce stand- 



350 CRIMINOLOGY 

The above-mentioned conditions have been the principal 
causes of the so-called " police system" in this country. By 
this term is ordinarily meant an organized system within the 
police department for gathering and apportioning the blackmail 
levied upon the violators of the law. These offenders include 
not only the violators of the laws against vice, but also habitual 
and professional criminals with whom the police are frequently 
in collusion. The details of the "police system" have been 
exposed and laid bare in many of our cities by investigating 
committees, in the course of political campaigns, and in the 
trial of certain cases in the criminal courts. 1 These revelations 
have indicated the extent to which the safety of life and property 
in this country is menaced by police corruption. 

Homicide in the United States 

It is, of course, impossible to measure accurately the effect of 
police inefficiency and dishonesty upon the extent of crime. This 

ards of conduct which do not meet with general public approval. There 
is little attempt to make a particular code of behavior the subject of general 
criminal legislation. The high moral standards of a few people are not the 
legal requirements of the state. Only occasionally is there any movement 
to place upon the statute books laws which serve only to satisfy the con- 
sciences of those responsible for them. This is a subject worthy of more 
attention than can be given in these pages. It strikes deep into the heart 
of the police problem." (R. B. Fosdick, op. cit., p. 379.) 

1 For example, in 191 2 the professional gambler Rosenthal was murdered 
for threatening to "squeal" on the police in New York City. The police 
lieutenant Becker and his accomplices were electrocuted for this murder. 
In the course of their trial much evidence was produced with regard to the 
"police system" in New York. 

The Chicago committee on crime speaks of the collusion between the police 
and the professional criminals as follows: — 

"There can be no doubt that one of the chief causes of crime in Chicago 
is that members of the police force, and particularly of the plain clothes 
staff, are hand in glove with criminals. Instead of punishing the criminal, 
they protect him. Instead of using the power of the law for the protection 
of society, they use it for their own personal profit. They form a working 
agreement with pickpockets, prowlers, confidence men, gamblers, and other 
classes of offenders. The basis of this agreement is a division of profits be- 
tween the lawbreaker and the public official. The exact extent of this sys- 
tem it is impossible to determine, but there is no doubt that its ramifica- 
tions are so wide as to cripple the machinery for the enforcement of the 
law." {Op. til., p. 184.) 



THE POLICE FUNCTION 35 1 

is particularly difficult with respect to the crimes against prop- 
erty, because it is impossible to ascertain the total amount 
which is stolen. It is more feasible with respect to crimes against 
the person, and especially homicide, since most of the homicides 
are known. It is, therefore, of some interest in this connection 
to mention a few comparative statistics of homicide. In 19 13 
there were in Chicago 262 arrests and arraignments for murder, 
in New York 131, and in London 36. 1 It has been estimated 
from mortality statistics in census reports and from other 
sources of information that during the decade ending with 1909 
the average homicide rate in the registration area in the United 
States was 4.3 per 100,000 of population, as against an average 
homicide rate in England and Wales of 0.9 per 100,000 of popula- 
tion. " In other words, there was an excess of 378 per cent, in the 
homicide mortality of the United States over the corresponding 
homicide record of England and Wales. 2 

The excessive amount of homicide in this country is probably 
due in part to disregard for human life, which is in turn due at 
least in part to the new and somewhat unsettled conditions in 
this country. But it is certainly due to a considerable extent to 
the inefficiency of the police. This inefficiency has unfortunately 
been seconded often by the weakness of the courts in repressing 
crime on account of technicalities in the procedure. 

Preliminary Detention, Provisional Liberation, and 
Indemnification 

In order that the police may be able to do their work effec- 
tively it is essential that they should be given more or less power. 
They must be able to arrest and detain suspected persons. But 

1 Report of the Chicago Crime Committee, p. 9. 

2 F. L. Hoffman, cited in the Jour. Crim. Law, Vol. Ill, No. 5, Jan., 1913, 
p. 676. 

In a more recent article Hoffman has estimated that the mortality from 
homicide in the registration states of the U. S., 1910-1914, was 2.9 per 
100,000 of population in the New England states, 4.8 in the Middle Atlantic 
states, 13. 1 in the Southern states, 4.2 in the North Central states, 8.7 in 
the South Central states, and 10.6 in the Western states. In thirty-one of 
the largest cities the rate was 5.0 from 1895 to 1904, and 8.1 from 1905 to 
1914. In 1915 the rate in these cities was 8.3, the highest rate being 85.9 
in Memphis, Tenn. {The Spectator, Vol. XCV1I, No. 25, Dec. 21, 19 16, 
pp. 278-280.) 



352 CRIMINOLOGY 

these powers must be safeguarded as much as possible against 
their abuse and misuse. There is probably no jurisdiction in the 
world where a policeman does not have the power to arrest a 
person who commits or attempts to commit a crime in his 
presence. Furthermore, he is usually permitted to arrest a 
person suspected of having committed a serious crime, such as a 
felony, even though he has not witnessed it. But under other 
circumstances he is usually not empowered to arrest unless he 
has a warrant, or written mandate, which has been issued by a 
judge. * 

Having made an arrest he is usually required to bring the 
person in custody before a judge within a limited period of 
time, as, for example, within twenty-four hours. The accused 
person must then be tried or held for trial by the judge. Other- 
wise he must be released from custody. The common law writ of 
habeas corpus is still another safeguard against unlawful deten- 
tion. This writ is issued by a court and commands that a person 
in confinement be brought before it in order to determine the 
legality of the confinement. 

The principal measure used to make preliminary detention 
unnecessary is provisional liberation. The granting of provi- 
sional liberation depends partly upon the law and partly on the 
judge. The law specifies which crimes with which persons in 
custody are accused are bailable, and which crimes are not 
bailable. But a certain amount of discretionary power is usually 
left to the judge. Furthermore, liberation on bail may some- 
times be granted by police officials. Liberation on bail depends 
upon the giving of security by sureties or by the prisoner himself 
for the reappearance of the prisoner. 

In some jurisdictions the judge may under certain circum- 
stances release the prisoner upon his own recognizance without 
requiring any security in the way of bail. Furthermore, it is 
now becoming customary to obviate any preliminary detention 
whatever in minor cases by issuing a summons to appear in 
court at the proper time without making any arrest. 

Persons undergoing preliminary detention should be given the 
best possible treatment. They should not be imprisoned with 
convicted criminals as is now done in most places, but should be 

1 See, for example, the New York State Code of Criminal Procedure, Sec- 
tions 145-221. 



THE POLICE FUNCTION 353 

detained in a place not a prison and much more comfortable 
than an ordinary prison. This is essential not only in justice to 
the accused, who are presumed to be innocent until found 
guilty, but also to impress upon the minds of the public the dis- 
tinction between the unconvicted prisoners and the convicted 
criminals. 

Witnesses should not be detained except under order of a court 
and when there is good reason to believe that their testimony 
cannot be secured without such detention. They should never 
be confined in a prison, but in a special house of detention. They 
should be remunerated by the state for the time they have lost. 

Reparation should be made as far as possible to the innocent 
persons who suffer the evils of preliminary detention and pros- 
ecution. At present it is possible for the person who is acquitted 
to sue the police and the complainant for damages for malicious 
or unreasonable prosecution. If, however, the policeman or the 
complainant has no property, such a suit is of no value, even if 
successful. In this country there is no indemnification by the 
state for unjustifiable prosecution or for unjust conviction. And 
yet there can be no question about the right of the victim of 
unjustifiable prosecution or conviction to receive reparation. 
The state should compensate the innocent victim of its police 
and judicial functions just as much as it compensates property 
owners when it exercizes the powder of eminent domain. A 
pecuniary compensation is the least it can give, for it can never 
make reparation for the humiliation, dread, and other forms of 
mental anguish and physical suffering caused by unjustifiable 
prosecution, and unjust conviction and punishment. 

Furthermore, it is expedient for the state to make indemnifi- 
cation in order to prevent as far as possible the rankling sense of 
injustice sure to arise in the minds of its victims w T hich may at 
some time or other be turned against the state. Indemnification 
would also cause the state to exercize greater precautions 
against error in the trial of accused persons. Indemnification is 
now given in different ways and in varying degrees in several 
European countries, such as Switzerland, Portugal, Sweden, 
Norway, France, Austria, and Germany. 1 

1 An excellent summary of this legislation is given in the following article: 
E. M. Borchard, European Systems of State Indemnity for Errors of Criminal 
Justice, in the Jour. Cfim., Law, Vol. Ill, No. 5, Jan., 1913, pp. 684-718. 



354 CRIMINOLOGY 

The judges who come most closely into touch with the work of 
the police are the magistrates in the lowest courts, frequently 
called the police courts. These magistrates should watch the 
police carefully and restrain them from any unlawful use of their 
power. It is sometimes asserted by representatives of the police 
that they are restrained too much by these magistrates, so that 
they are greatly hampered in their work of suppressing crime. 
But in all probability there is more danger of the magistrates 
restraining the police too little than too much. * 

1 The police court in connection with the work of the police has been dis- 
cussed from different points of view in various books, as, for example, the 
following: W. McAdoo, Guarding a Great City, New York, 1906; H. R. P. 
Gammon, The London Police Court, London, 1907; H. L. Adam, Police 
Work from Within, London, 191-?. 



PART V 
PENOLOGY 



CHAPTER XXII 
THE ORIGIN AND EVOLUTION OF PUNISHMENT 

The objects of punishment: vengeance; elimination; restraint; deterrence; 
restitution; reformation; etc. — The varieties of penalties — Imprison- 
ment — Transportation — Poetic penalties — The scope of punish- 
ment — The severity of punishment: influence of despotism, war, 
magic, and religion — The Inquisition — The modern humanitarian 
movement: the Renaissance; the industrial revolution; the division of 
labor; modern science. 

In Chapters II and III have been discussed the factors which 
give rise to the forms of social reaction ordinarily called punish- 
ment. Back of these punitive reactions lie the emotions of fear 
and anger, and the reactions themselves acquire their dynamic 
force primarily from the protective and combative instincts 
which these emotions accompany. The emotions and instincts 
are in the first instance individual. But when they are aroused 
in many members of a group, they tend to reenforce each other 
and to lead to cooperative action. 

I have stated that these social reactions have been observed 
in some animal species, where the members of a group have at- 
tacked one of their fellows who has offended them, and have 
injured or killed it, or have driven it away. Presumably the 
same kind of spontaneous reactions took place among the 
earliest men. Among the primitive races which have been 
observed these reactions have become somewhat organized and 
conventionalized. They are rationalized and justified by means 
of a philosophy which is largely religious and magical in its 
nature. In many cases the paternal authority has been utilized 
to organize the penal function under a patriarchal form. 1 In 
some cases the patriarchate probably furnished the starting 
point for the centralization of authority under the chieftain, 
priest, or king. 

When the art of writing was discovered and the state came 

1 Cf. J. Makarewicz, Evolution de la peine, in the Arch, d'anth. crim. x 
Vol. XIII, March, 1898, pp. 129-177. 



358 CRIMINOLOGY 

into existence, written law became possible. Punishment now 
reached its full development as a definitely organized, conscious 
reaction against what injures or is presumed to injure society. 1 
The state, first under a monarchical and then under a democratic 
form, acquired much power to enforce punishment. The law 
now stated in great detail the nature and purposes of punish- 
ment. 

The Objects of Punishment 

Among primitive peoples almost the only penalties appear to 
have been mutilation, death, and banishment. 2 Generally 
speaking, the object of primitive penalties was to get rid of the 
culprit who had incurred the wrath and had aroused the fear of 
the community. This object was attained by means of death or 
banishment into exile, which frequently meant death. In the 
higher stages of culture the penalties became more varied, partly 
because other objects of punishment came to be recognized, but 
also because a larger number of punitive methods became 
feasible. 

There is not the space to describe the many different kinds of 
penalties which have been used in barbarous and civilized 
societies. 3 But a cursory survey of the principal varieties will 

1 Westermarck defines punishment as follows: — " By punishment I do not 
understand here every suffering inflicted upon an offender in consequence 
of his offence, but only such suffering as is inflicted upon him in a definite 
way by, or in the name of, the society of which he is a permanent or tem- 
porary member." (E. Westermarck, The Origin and Development of the 
Moral Ideas, Vol. I, London, 1906, p. 169.) 

Oppenheimer defines punishment as follows: — "Punishment is an evil in- 
flicted upon a wrongdoer, as a wrongdoer, on behalf and at the discretion 
of the society, in its corporate capacity, of which he is a permanent or tem- 
porary member." (H. Oppenheimer, The Rationale of Punishment, London, 
1913, p. 4.) 

2 Primitive penalties have been described in numerous descriptive writ- 
ings about primitive peoples, and in many treatises upon the evolution of 
punishment. In the above-mentioned writings of Westermarck, Oppen- 
heimer, and Makarewicz are to be found brief discussions of this subject. 

3 These penalties have been described in many historical and other 
works, of which I will mention the following: ■ — G. Ives, A History of Penal 
Methods, London, 1914; L. O. Pike, A History of Crime in England, Lon- 
don, 1873-1876, 2 vols., W. Andrews, Punishments in the Olden Times, 
London, 1881; J. F. Stephen, A History of the Criminal Law of England, 
London, 1883, 3 vols.; E. F. Du Cane, The Punishment and Prevention of 



THE ORIGIN AND EVOLUTION OF PUNISHMENT 359 

reveal most of the objects which these penalties have been in- 
tended to attain. The fundamental object psychologically 
probably is to wreak vengeance upon the offender. The primary 
avowed object doubtless is to get rid of the culprit who endangers 
the public. Along with this object frequently, goes a desire to 
injure the guilty one for the evil which he has caused. 

But other utilitarian objects have appeared and have in- 
fluenced the character of punishment. The purpose of deterring 
others from committing these offenses plays an important part. 
The idea of restitution, in so far as that is possible, is embodied 
in many penalties. The temporary restraint of the criminal 
is the object of some penalties. The utilization of the labor of 
the offender is effected by some forms of punishment. A rev- 
enue to the state is derived from some punishments. A poetic 
relation is to be discerned between some offenses and the pen- 
alties prescribed for them. In recent times the purpose of 
changing the character of the criminal by means of penal 
measures, namely, reformation, has been playing an increasingly 
important role. 

The Varieties of Penalties 

Capital punishment has been inflicted in many different ways. 
Among these may be mentioned hanging, burning, beheading, 
boiling, pressing, poisoning, flaying, dismemberment, precipita- 
tion from a height, breaking on a wheel, crucifixion, drowning, 
stoning, suffocation, starving, electrocution, etc. In many of 
these cases it has been the intention to cause the victim as much 
suffering as possible before death supervened. In fact, in the 
past capital punishment was usually preceded by torture. 

When torture has not resulted in death, it has frequently re- 
sulted in mutilation for life. The purpose of this mutilation was 
usually not only to cause suffering to the offender, but also to 
furnish the public horrible examples of the consequences of 
penality. 

Banishment, when practised by primitive peoples, usually 
meant death, because the offender was driven into the hands of 

Crime, London, 1885; F. H. Wines, Punishment and Reformation, New York, 
1895; C. Desmaze, Les penalties anciennes en France, Paris, 1866; F. Helbing, 
Die Tortur, Geschichte der Folter im Kriminal-verfahren alter V biker mid Zeiten y 
Berlin, 1902, 2 vols. 



360 CRIMINOLOGY 

hostile groups, or into the wilderness where he was almost cer- 
tain to perish from starvation or as the prey of wild beasts. 
When the state came into existence, banishment meant exile 
from the territory of the state. Sometimes when the offender 
could not be captured, he was declared an outlaw to be punished 
by death or otherwise if captured. So that outlawry constituted 
a form of banishment from the populated areas within the state. 

When, as a result of the evolution of agriculture and industry, 
labor became valuable, offenders were preserved and made 
slaves or serfs. They were set to work to till the soil, to row in 
galleys, etc. Later, when the prison system came into existence, 
they were forced to work in the prisons, and to produce objects 
of value. At the present time their labor is sometimes used 
outside of as well as inside penal institutions. 

The idea of restitution in penal treatment appeared many 
centuries ago. In the Anglo-Saxon law it became possible for 
the offender to compound his crime by the payment of hot or 
wergild. Later the principle of restitution of stolen property and 
reparation for bodily injury passed largely into the civil law, 
where it is administered mainly under the law of torts. It is 
perhaps not sufficiently applied by the criminal law today. 
This is a principle in the application of which the civil and the 
criminal law should cooperate more fully than they do at present. 
Indeed, exemplary damages as granted by the civil courts 
strongly resemble a form of penal treatment. 

The practise of fining, which is much used in modern criminal 
law, is somewhat related to penal restitution. The fine is fre- 
quently supposed to represent in a measure the injury which 
has been done to the public by the crime. But the fine is usually 
paid to the state, while the individual victim of the offender 
receives nothing in the way of restitution. So that fining con- 
stitutes an exceedingly inadequate application of the principle 
of restitution. 

Punishment by shame has frequently been used in the past. 
Among primitive peoples punishment by ridicule was frequently 
used. During the last few centuries have been used such punish- 
ments as the pillory, the stocks, branding, the tumbril or wagon 
upon which the offender was exposed, the cucking stool {cathedra 
stercoris) or chair upon which the offender was exhibited in 
public. Two other purposes doubtless played a part in the 



THE ORIGIN AND EVOLUTION OF PUNISHMENT 36 1 

application of these penalties, namely, their deterrent influence 
upon the public, and in order to make known these offenders to 
the public, who could thereafter beware of them. This sort of 
punishment has fallen largely into desuetude in modern times, 
partly for humanitarian and partly for other reasons. 

Imprisonment 

Imprisonment for purposes of detention has been used for a 
long time. But imprisonment as a method of penal treatment 
has not been much used until comparatively recent times. Im- 
prisonment did not attain great importance as a penal measure 
before the seventeenth or eighteenth century. It received its 
greatest development during the nineteenth century. 1 

Dungeons in castles and forts and other kinds of prisons have 
long existed. But these were ordinarily used merely as places of 
temporary detention for criminals and political prisoners. Under 
the unstable conditions of the past it was not easy to keep of- 
fenders under duress for long periods of time. War and other 
disturbances rendered social conditions so unstable as to make 
it difficult to maintain permanent places of incarceration. 

Furthermore, imprisonment was not sufficiently immediate 
and drastic as a form of punishment to meet the needs of the 
past. Consequently, ancient penalties were ordinarily summary 
in character, and did not require for their application the long 
delay of imprisonment. But in modern times it has become the 
principal form of penal treatment. I shall, therefore, describe 
the prison system at considerable length in a later chapter. 

In the early days of the prison system the living conditions 
in the prisons were very bad. Ordinarily the prisons were over- 
crowded. Small provision was made in the way of food, sleeping 
accommodations, and sanitary conveniences. Little attempt 
was made to segregate the different classes of prisoners. Con- 
sequently, old and young, male and female, hardened criminals 
and youthful beginners in crime, the guilty and the innocent, 
debtors, paupers, and the insane were mingled together in the 

1 See, for brief accounts of the evolution of the prison system, G. Ives, 
A History of Penal Methods, London, 1914; E. F. Du Cane, The Punishment 
and Prevention of Crime, London, 1885; F. H. Wines, Punishment and Refor- 
mation, New York, 1895. 



362 CRIMINOLOGY 

prisons. Little attempt was made to provide work for the 
prisoners or to keep them occupied in any other way. 

These horrible conditions aroused the efforts of prison re- 
formers like John Howard, 1 Samuel Romilly, and Elizabeth Fry, 
who, during the latter part of the eighteenth century and the 
early part of the nineteenth century, endeavored to better these 
conditions. 2 These prison conditions led inevitably to the 
physical degeneration and the moral degradation of their in- 
mates, and through them had a baneful effect upon the public 
at large. 3 It was, however, difficult to interest the public in 
conditions so remote from their customary activities. The 
methods used by these reformers were mainly sentimental, 
philanthropic, and religious in their character, and could not, 
therefore, be very effective in reaching the fundamental causes 
of these prison evils. Consequently, it is doubtful if these re- 



1 J. Howard, The State of the Prisons in England and Wales, 2d ed., War- 
rington, 1780; An Account of the Principal Lazarettos in Europe, Warring- 
ton, 1789. 

2 W. H. Render, Through Prison Bars, The Lives and Labours of John 
Howard and Elizabeth Fry, London, 1894 (?). 

3 The state of the prisons in England in the eighteenth century, as indi- 
cated by Howard's writings, has been described as follows: — 

"Deprived of the very essentials of life — air, water, and food — the 
physical condition of prisoners was wretched in the extreme. But the moral 
atmosphere in which they lived was still worse. No attempt was made to 
classify or separate them. Untried prisoners and debtors, who formed the 
bulk of the permanent prison population, were herded with thieves, high- 
waymen, and murderers, and all alike lived in enforced idleness, which was 
a leading feature of the prison administration. In the day rooms men and 
women, sick and healthy, sane and insane, veterans in crime, and youthful 
offenders gambled, drank, swore, concocted burglaries, and even manufac- 
tured counterfeit coin." (R. F. Quinton, Crime and Criminals, 1 876-1 gio, 
London, 1910, p. 169.) 

*'It is not surprising that under these conditions the germs of disease were 
constantly present in the gaols throughout the country,, and that they 
should have become extensive laboratories for the cultivation and dissemina- 
tion of fever. This actually occurred, and that particular fever which orig- 
inates in overcrowding, filth, and poverty, was so constantly breaking out, 
that it came to be called 'gaol fever.' It was endemic in many prisons. 

"The ravages of the disease, however, were far greater outside than in- 
side. The clothing and bodies of prisoners seemed to be saturated with the 
poison. They carried it with them into Court, into their homes, into towns 
and villages, and even into our fleets, spreading infection everywhere." 
{Op. cit., pp. 1 70-1 7 1.) 



THE ORIGIN AND EVOLUTION OF PUNISHMENT 363 

formers had much influence in bettering prison conditions, how- 
ever worthy their motives may have been. 

Another group of reformers who had considerable influence 
upon prison reform were the philosophers and scientists of the 
eighteenth century. Especially noteworthy among these re- 
formers were the Encyclopedists who had much to do with 
bringing about the French Revolution. While their influence 
upon prison reform was not so direct as that of the prison re- 
formers represented by Howard, it was probably greater in the 
long run, for they were largely responsible for the modern 
humanitarian movement which has been the principal factor 
in ameliorating the treatment of the criminal. 

The Italian criminologist Beccaria was the representative of 
this group of eighteenth century thinkers who devoted special 
attention to crime and the criminal. In his writings he advo- 
cated with great skill many humanitarian reforms in criminal 
law and procedure and in penal treatment. Others who may be 
mentioned are Voltaire and Montesquieu. 

Transportation 

For a time an effort was made to relieve the pressure upon the 
prisons by means of transportation. The discoveries during the 
fifteenth and sixteenth centuries of vast areas of hitherto un- 
known and almost uninhabited land furnished good facilities 
for this form of banishment. At first it was customary to trans- 
port convicts to colonies where their labor was sold to the colon- 
ists. So that the convict labor aided somewhat in building up 
the new colonies. But, on the other hand, this system intro- 
duced an undesirable element into the colonies which the colon- 
ists naturally feared and resented. Furthermore, it established 
a partially enslaved class which was inconsistent with the lib- 
ertarian ideas of most of the colonists. Consequently, as 
rapidly as the colonies won their independence of the mother 
countries, or became sufficiently powerful to refuse to admit 
convict laborers, it became necessary to adopt other methods 
of transportation. 

When it was no longer possible to transport convicts to the 
colonies, penal colonies were established in regions as yet un- 
colonized. England established penal colonies in Australia 



364 CRIMINOLOGY 

and Tasmania, France in New Caledonia and Guiana, Italy in 
Northeastern Africa, Russia in Siberia and Saghalien, etc. In 
the early days of this form of transportation prisoners were 
treated ordinarily with extreme harshness and cruelty in the 
convict ships and penal colonies. 

In course of time this form of transportation also was gradu- 
ally abandoned. Sometimes this was because colonies grew 
up in the vicinity of the penal settlements, and would no longer 
tolerate the penal colonies. But transportation was abandoned 
also because cellular confinement and penal servitude were 
adopted as methods of punishment in the mother countries. 

Transportation is a modern form of the ancient penalty of 
exile or banishment. It was to be expected that as the newly 
discovered lands have become more or less settled and popu- 
lated this form of punishment would disappear. Today penal 
colonies to which convicts are transported are maintained by 
only a few countries. 

Poetic Penalties 

Poetic penalties, which are related by similarity or in some 
other direct fashion to the crimes they punish, have frequently 
been used in the past. The tendency to impose these poetic 
penalties has much the same psychological basis as sympathetic 
magic. A resemblance, usually superficial in its character, or 
some other apparent relation is noted between an offense and a 
penalty, and it is therefore assumed by those who are applying 
the penal treatment that there is a necessary connection between 
the two, and that this penalty must be imposed upon this offense. 

Poetic penalties are also based upon the romantic notion 
that poetic justice, so called, is accomplished by them. The 
ancient law of retaliation (lex talionis) was doubtless based 
in part upon this notion, so that an eye for an eye and a tooth 
for a tooth was supposed to attain poetic justice. 

But poetic punishment doubtless has frequently been based 
in part upon the idea of prevention. For example, it has been 
recognized that emasculation for the rapist would effectually 
prevent him from committing rape again. The brank or metal 
gag, frequently called the scold's or gossip's bridle, would effec- 
tually restrain temporarily the tongue of the troublesome 



THE ORIGIN AND EVOLUTION OF PUNISHMENT , 365 

woman. The ducking stool was supposed to cool the ardor of 
the temper of the scold. 

The romantic purpose of attaining poetic justice has largely 
disappeared from penal treatment in our modern realistic 
world. The idea of prevention plays an ever increasing role in 
punishment. But it has become evident that poetic penalties 
frequently are not effective preventives in the long run. Emas- 
culation may effectually prevent the rapist from rape. But it 
will not necessarily reform him from being as dangerous a crimi- 
nal in other ways. The brank may effectually gag the gossip 
temporarily. But it may only serve to accentuate the malev- 
olence of her malicious tongue after it has been removed. The 
ducking stool may cool the body of the scold, but may only serve 
to enhance the inward heat of her temper. It is probably true 
that poetic penalties with the object of prevention are most 
effective upon youthful criminals. 

The Scope of Punishment 

It must now be remembered that the penalties which have 
been briefly described have been imposed not only upon those 
who are ordinarily regarded as criminals today, but also upon 
many other persons who are not now usually regarded as crimi- 
nals. Imprisonment for purposes of detention has been and 
still is imposed upon those accused of crime and upon witnesses. 
Torture has frequently been inflicted in the past upon the ac- 
cused in order to extort confessions, and upon witnesses in order 
to secure desired evidence. The ordeals imposed upon accused 
persons in order to ascertain their guilt or innocence constitu- 
ted in practise a form of torture. 

Among primitive peoples and also sometimes among bar- 
barous peoples the relatives of criminals were punished. This 
was due to the principle of collective responsibility for crime 
according to which the family of the offender, and sometimes 
an even larger group to which he belonged, was held responsible 
for his offense. 

Magicians, sorcerers, and witches have frequently been pun- 
ished. This was usually due to the fact that they were supposed 
to be practising black magic which was harmful to the commun- 
ity. So that the practitioner in black magic was regarded in 



366 CRIMINOLOGY 

effect as a criminal. In later days it became customary to pe- 
nalize the practise of any kind of magic. This was probably due 
in large part to the fact that religion had by this time acquired 
an ascendency over magic, and therefore jealously restrained 
its ancient rival with the aid of the law by penalizing it. 

Lunatics have frequently been subjected to penal treatment. 
In many cases this has been due to the fact that they have been 
regarded as magicians, or as inhabited by evil spirits. It must 
be remembered, on the other hand, that lunatics have also been 
regarded as geniuses almost superhuman in character, or as 
semi-divine persons. 

Prisoners of war were frequently punished in the past like 
common criminals. In modern times a sharp distinction has 
been drawn between prisoners of war and common criminals,, 
but there is a wide range of punishments for violations of military 
law, some of which are even more drastic than the penalties 
accorded to common criminals. 

Heretics have frequently been punished in the past. Various 
motives have prompted this punishment. Frequently the heretic 
has been regarded as dangerous to the community, because the 
deity might wreak vengeance upon the whole community for 
his heresies. The heretic would then fall into almost the same 
category as the common criminal. In other cases the sole motive 
or the principal motive may have been to punish the heretic for 
his sinfulness towards the deity. In these cases the ecclesiastical 
inquisitors and executioners were taking it upon themselves 
to assist the deity in punishing violations of the divine law. 

Debtors have frequently been imprisoned in the past, either 
temporarily until they paid their debts, or as a punishment for 
their delinquency in meeting their financial obligations. Im- 
prisonment for debt is still inflicted in some places. It occupies 
the twilight zone between the criminal and the civil law. It is 
used mainly as a means to enforce judgments under the civil 
law, but it still retains something of its exemplary character. 

The Severity of Punishment 

The preceding survey of penalties indicates that there has 
been a good deal of variation in the severity of punishment. 
Generally speaking, punishment has decreased in severity down 
to the present time. The broadest and most inclusive explana- 



THE ORIGIN AND EVOLUTION OF PUNISHMENT 367 

tion for this phenomenon doubtless is the gradual amelioration 
of the bitterness of the struggle for existence. As the conditions 
of life have become easier and safer, there has been less occasion 
for a harsh and violent reaction against those who commit 
anti-social acts. But this decrease in the severity of punish- 
ment has not been uniform, and there has been more or less 
fluctuation back and forth in its severity. The principal factors 
for increasing the severity of punishment probably have been 
the centralization of power, war, magic and religion and the 
ignorance they connote. 

It must be remembered that in the past the world has been 
much more sparsely populated than at the present time. Fur- 
thermore, efficient police protection is a comparatively recent 
development. Consequently, it is not surprizing that the treat- 
ment of the criminal was rigorous and summary in its nature. 
Death, maiming, and similar forms of punishment were quick 
and effective methods of incapacitating the criminal from com- 
mitting further offenses. Under the more unstable conditions 
of the past it would have been difficult to carry out long con- 
tinued forms of punishment such as imprisonment. 

Among primitive peoples the principal penalties probably 
have been death and banishment. These were drastic and sum- 
mary forms of punishment. But the number of offenses to which 
they were applied was usually not large in the earliest com- 
munities. In these simple and democratic communities com- 
paratively few forms of conduct seriously menaced the interests 
of the community from within. But as magical ideas and reli- 
gious beliefs evolved, and as power came to be centralized, the 
number of offenses rapidly increased. 

Power centralized under the chieftains of tribes, the patriarchs 
of family groups and village communities, priests, kings, and 
ruling classes. This power was used to a considerable extent for 
the exploitation of the remainder of the community. The penal 
function furnished a useful instrument for this exploitation, and, 
consequently, its application was greatly extended for this pur- 
pose. Magical ideas and religious beliefs have also been ex- 
tensively used by priestly and royal exploiters to aid them in 
their predatory activities. 1 

1 Compare the following passage from Westermarck : 

"The chief explanation of the great severity of certain criminal codes lies 



368 CRIMINOLOGY 

War also has doubtless tended to accentuate the harshness of 
punishment. This has been due in part to the extreme severity 
with which enemies are treated in war time. This severity was 
bound to react upon penal treatment so as to increase its rigor- 
ousness. But it has also been due to the fact that war aggravates 
the bitterness of the struggle for existence, and thus enhances the 
intensity of the selective process. Consequently, it becomes 
necessary for a community or a nation to extirpate with greater 
ruthlessness the internal as well as the external foe. 

Magical ideas have led to a good deal of penal treatment. 
Those who have been suspected of practising black magic which 
is harmful to the community have almost invariably been 
treated with the utmost rigor. Religion has led to even more 
penal repression. A vast amount of punishment has been 
meted out in the past for alleged violations of divine law, and 
more or less of penal treatment today is for this purpose. 

Furthermore, there has been a vast amount x)f persecution for 
religious unbelief, and heretics have frequently been treated as 
the most heinous of criminals. This has been due partly to the 
fact that heretics are presumably violating divine law in re- 
fusing to believe. But it has also been due to the fact that 

in their connection with despotism or religion or both. An act which is 
prohibited by law may be punished, not only on account of its intrinsic 
character, but for the very reason that it is illegal. When the law is, from 
the outset, an expression of popular feelings, the severity of the penalty 
with which it threatens the transgressor depends, in the first place, on the 
public indignation evoked by the act itself, independently of the legal pro- 
hibition of it. But the case is different with laws established by despotic 
rulers or ascribed to divine lawgivers. Such laws have a tendency to treat 
criminals not only as offenders against the individuals whom they injure or 
against society at large, but as rebels against their sovereign or their god. 
Their disobedience to the will of the mighty legislator incurs, or is supposed 
to incur, his anger, and is, in consequence, severely resented." (E. Wester- 
marck, op. cit., Vol. I, pp. 193-194.) 

See, also, E. Durkheim, Deux his de revolution penale, in Vannee so- 
ciologique, Vol. IV (1899-1900), Paris, 1901, pp. 65-95. 

Durkheim's two laws are the following: — 

" L'intensite de la peine est d'autant plus grande que les societes appar- 
tiennent a. un type moins eleve — et que le pouvoir central a un caractere 
plus absolu." (P. 65.) 

"Les peines privatives de la liberte et de la liberte seule, pour des periodes 
de temps variables selon la gravite des crimes, tendent de plus en plus k 
devenir le type normal de la repression." (P. 78.) 



THE ORIGIN AND EVOLUTION OF PUNISHMENT 369 

heresies are feared on the ground that divine retribution for 
disbelief will be wreaked upon the community as a whole. In 
the third place, persecution has always been seized upon by 
priestly exploiters as a means to further their own ends. When- 
ever religion has been institutionalized, this has almost in- 
variably happened. The most notable example of religious 
persecution for purposes of priestly exploitation was the Inquisi- 
tion organized by the Christian Church early in Medieval times, 
and which lasted through the Middle Ages and in Spain per- 
sisted until after the commencement of the nineteenth century 
(1834). 

The Inquisition 

The Holy Inquisition during the six centuries of its existence 
caused untold suffering to its victims and their families and 
friends. It furnished a powerful weapon to the Church and the 
Papistry to aid them in maintaining and extending their ill- 
gotten authority. It was one of the principal forces which 
plunged Europe back into barbarism, and which delayed the 
advent of our modern Occidental civilization. It was inevitable 
that it should have a brutalizing effect upon all phases of life 
during the Middle Ages. 

But the above picture, repulsive though it is, does not tell the 
whole story of the iniquities wrought by the Holy Office. In 
order to accomplish more effectively their evil ends, the in- 
quisitors developed one of the most barbarous and most unjust 
methods of procedure which has ever been devized. Their 
proceedings were shrouded under profound secrecy, a most 
efficient cloak for injustice. Little opportunity was given to the 
accused to state his side of the case. Torture was freely used in 
questioning the witnesses and accused, and in extorting con- 
fessions. 

If the inquisitorial procedure had been restricted to the eccle- 
siastical courts, it would have died with the Inquisition. But 
unfortunately through the canonical law it had a good deal of 
influence upon the secular law as well. It introduced secret in- 
quisitorial methods and the use of torture into criminal pro- 
cedure upon the Continent, and thus had a most baneful effect 
upon the treatment of criminals and those accused of crime. 



370 CRIMINOLOGY 

The criminal law did not succeed in shaking off its malignant 
influence until after the French Revolution, and traces of its 
influence still remain in the criminal jurisprudence of several 
European countries. 1 

The Modern Humanitarian Movement 

During the past century or two has come the modern hu- 
manitarian movement. This movement has, among other 
things, ameliorated greatly the treatment of the criminal. We 
can readily discern its causes if we consider the salient features of 
modern history. 2 

1 See for a history of the Inquisition the monumental works of H. C. Lea, 
A History of the Inquisition of the Middle Ages, Philadelphia, 1888, 3 vols.; 
A History of the Inquisition of Spain, New York, 1906-1907, 4 vols. 

For a succinct statement of the causes of the Inquisition read the first 
volume of the first named work, especially pages 233-242. At the close of 
the third volume of this work Lea characterizes the -Inquisition in the fol- 
lowing words: 

"A few words will suffice to summarize the career of the mediaeval In- 
quisition. It introduced a system of jurisprudence which infected the 
criminal law of all lands subjected to its influence, and rendered the ad- 
ministration of penal justice a cruel mockery for centuries. It furnished 
the Holy See with a powerful weapon in aid of political aggrandizement, 
it tempted secular sovereigns to imitate the example, and it prostituted the 
name of religion to the vilest temporal ends. It stimulated the morbid 
sensitiveness to doctrinal aberrations until the most trifling dissidence was 
capable of arousing insane fury, and of convulsing Europe from end to end. 
On the other hand, when atheism became fashionable in high places, its 
thunders were mute. Energetic only in evil, when its powers might have 
been used on the side of virtue, it held its hand and gave the people to under- 
stand that the only sins demanding repression were doubt as to the ac- 
curacy of the Church's knowledge of the unknown, and attendance on the 
Sabbat. In its long career of blood and fire, the only credit which it can 
claim is the suppression of the pernicious dogmas of the Cathari, and in 
this its agency was superfluous, for those dogmas carried in themselves the 
seeds of self-destruction, and might more wisely have been left to self-ex- 
tinction. Thus the judgment of impartial history must be that the In- 
quisition was the monstrous offspring of mistaken zeal, utilized by selfish 
greed and lust of power to smother the higher aspirations of humanity and 
stimulate its baser appetites." (A History of the Inquisition of the Middle 
Ages, Vol. Ill, p. 650.) 

2 I have analyzed at some length the causes of the modern humanitarian 
movement in my Poverty and Social Progress, New York, 1916, Chap. XVII. 

See also my article entitled The Rise of Modern Humanitarianism, in the 
Am. Jour, of Sociology, Vol. XXI, No. 3, November, 1915, pp. 345-359. 



THE ORIGIN AND EVOLUTION OF PUNISHMENT 37 1 

The modern period dates from the Renaissance, with its 
revival of the classic culture of ancient Greece and Rome which 
had long been suppressed by the Christian church and religion, 
and its renascence of art and learning. This renascence of 
learning marked the beginning of the development of modern 
science, which made possible the great economic changes of 
modern times. At the same time extensive explorations to all 
parts of the world were taking place, which resulted in the dis- 
covery of the Western Hemisphere and in a vast expansion of 
commercial relations. These explorations also resulted in the 
colonizing of many parts of the world by Europeans. 

In the eighteenth century began the great industrial revolu- 
tion, which substituted machine and factory methods of pro- 
duction on a large scale for the hand and domestic methods of 
production on a small scale of the past. This great change in- 
volved a vast extension of the principle of the division of labor 
within the process of production. Furthermore, with the aid of 
international commerce it caused a worldwide extension of the 
division of labor, which increased greatly the interdependence of 
all parts of the world. 

These great changes increased enormously the productive 
capacity of human society. As a consequence the population of 
the world increased greatly. The greater density of population 
which resulted gave rise, among other things, to more efficient 
government, and therefore to better police protection. Con- 
sequently, living conditions became safer, and it was no longer 
necessary to treat the criminal so harshly. 

Along with the expansion of the division of labor there took 
place a great increase in the range, facility, and rapidity of the 
means of communication through the steamship, railroad, tele- 
graph, telephone, post office, press, etc. By these means the 
different parts of the world have been put in touch with each 
other, and have come to know each other to an extent which was 
utterly impossible in ancient times. 

Last but not least, there was taking place at the same time the 
development of modern science, which was to a large extent the 
cause of the above-mentioned changes. In the nineteenth cen- 
tury came the theory of evolution, which showed the common 
origin of the entire organic world including man. When this 
theory was applied in anthropology, it showed that, just as there 



372 CRIMINOLOGY 

is no absolute distinction between man and other animals, so 
there is no absolute distinction between the different races of 
men. When this theory was applied in sociology, it showed the 
fundamental unity in the culture which has been developing in 
the course of social evolution. 

The significance of these great changes in relation to hu- 
manitarianism is obvious. The increasing interdependence of 
the different parts of the world made it more and more evident 
to individuals and to social groups that it was to their interest to 
concern themselves with the welfare of others. Furthermore, 
the knowledge acquired with regard to other individuals and 
social groups, through the means of communication described 
above and through science, has shown the fundamental sim- 
ilarity of all divisions of mankind, and has stimulated the sym- 
pathetic imagination to a high degree. These ideas and this 
knowledge have naturally tended in the main to stimulate the 
humane feelings and impulses in the relations of men and of 
social groups, and to inhibit the cruel feelings and impulses. 
So that these fundamental human traits, which have been in 
existence a long time, are being directed by the intelligence, 
under the social conditions which have evolved during the past 
few centuries, towards humanitarianism. 

These historical facts indicate that the modern humanitarian 
movement has arisen out of certain human traits influenced and 
directed by the conditions and ideas which have become prev- 
alent during the last few centuries. Like every great movement 
it is a product of social evolution in general, and can be under- 
stood only in the light of an analysis of social evolution. It is 
one phase of and an inevitable result from the universal world 
culture which is now rapidly coming into being. It has alleviated 
the treatment of the criminal just as it has ameliorated the con- 
dition of the poor, the sick, the insane, prisoners of war, and 
many other unfortunate classes. 



CHAPTER XXIII 
THE MORAL BASIS OF PENAL RESPONSIBILITY 

The sanctions of punishment — The nature of moral phenomena — Moral 
concepts and social control — The theory of penal responsibility — 
Free will and determinism — The psychological basis of the penal 
function: anger; vindictiveness; fear — The doctrine of partial respon- 
sibility — Penal responsibility and the individualization of punishment. 

I have already stated in Chapter III that in every social 
group there inevitably evolves a certain amount of control by 
the group. As man developed the ability to think conceptually, 
he attempted to justify this social control by explaining it and 
rationalizing it, and thus giving it a philosophic basis. In this 
fashion he arrived at various ethical ideas as to the responsibility 
of the individual to society which have served as a moral basis 
and sanction for punishment. 

The Sanctions for Punishment 

One of the earliest forms of justification for social control was 
the religious form. This justification was to the effect that people 
must be punished because they had violated the divine law. 
The religious sanction for penal treatment may therefore be 
called purely punitive and expiatory, in the sense that it is en- 
tirely or mainly a punishment and retribution for sin without 
any other purpose. This sanction for punishment still persists 
to a certain extent in the social consciousness and in the criminal 
law. 

In course of time man conceived the idea that there is in the 
universe a more or less immutable moral law which is binding 
upon man. Violation of this law would then demand reparation 
of some sort. The moral sanction for punishment may therefore 
be called reparatory and exemplary in the sense that it makes 
good in some measure the breach which immoral conduct has 
opened in the moral law. 

In recent times the idea has appeared and has acquired more 



374 CRIMINOLOGY 

or less influence that the sole justification for rules of conduct is 
the interest of society in the sense that society is to be protected 
against conduct which is injurious to it. The social sanction for 
punishment may therefore be called deterrent and preventive in 
the sense that penal treatment is for the purpose of benefiting 
society in the future, and not to make good an injury which has 
already been committed and which therefore cannot be obliter- 
ated. 

The religious and the moral sanctions for social control and 
penal treatment have been set forth and discussed in a vast mass 
of theological and metaphysical literature. The religious sanc- 
tion is based upon animistic beliefs in the existence of super- 
natural beings and of a divine law. These beliefs are repudiated 
by many thinking persons today. There are many others who, 
while they do not repudiate these beliefs, do not regard it within 
the province of man to enforce the divine law. The moral 
sanction is based upon ideological speculation which has no 
inductive basis, and which cannot therefore be regarded as 
having any scientific validity. 1 

As a matter of fact, back of all of these ethical theories are the 
instincts and emotions which influence social relations, the habits 
which arise on the basis of these instincts and emotions, and 
the customs and public opinion which develop in every human 
group. An adequate analysis of moral phenomena consists 
largely in an intensive study of the above-mentioned mental and 
social phenomena. Such an analysis is now becoming possible 
through the development of the modern sciences of psychology, 
anthropology, and sociology. I shall, therefore, not traverse 
the arid wastes of theological and metaphysical speculation, but 
will make a brief analysis of moral phenomena with the aid of 
these sciences. 

The Nature oe Moral Phenomena 

Moral phenomena arise primarily out of certain instincts and 
emotions which lead human beings to act and react upon each 
other either favorably or unfavorably. On the one hand are the 
emotion of anger and the combative instincts which it accom- 

1 Brief descriptions of these theological and metaphysical ethical theories 
are to be found in the writings of Lecky, Wake, Westermarck, Hobhouse, 
etc. 



THE MORAL BASIS OF PENAL RESPONSIBILITY 375 

panies, the emotion of fear and the instincts which lead to efforts 
to destroy or remove the object which is feared or to flee from 
it. These traits lead to conduct which is hostile and injurious to 
others. On the other hand are the emotions and instincts con- 
nected with gregariousness, parenthood, and sex. These traits 
give rise to sympathetic feelings, and prepare the way for a 
sympathetic understanding of each other on the part of human 
beings. They lead to altruistic acts in behalf of others, and 
prepare the way for a humanitarian point of view. The con- 
duct determined and controlled by these congenital instinctive 
and emotional traits has a moral significance because it affects 
for good or for ill the welfare of other members of the group. 1 

The outstanding congenital traits having moral significance, 
therefore, are anger and fear with the instincts which they 
accompany, which lead to dislike, disapproval, resentment, 
hatred, revenge, punishment, etc.; and the tender emotions and 

1 Westermarck asserts that "the moral concepts are based on emotions," 
and defines the "moral emotions" as follows: 

"These emotions are of two kinds: disapproval, or indignation, and ap- 
proval. They have in common characteristics which make them moral 
emotions, in distinction from others of a non-moral character, but at the 
same time both of them belong to a wider class of emotions, which I call 
retributive emotions. Again, they differ from each other in points which 
make each of them allied to certain non-moral retributive emotions, disap- 
proval to anger and revenge, and approval to that kind of retributive 
kindly emotion which in its most developed form is gratitude. They may 
thus, on the one hand, be regarded as two distinct divisions of the moral 
emotions, whilst, on the other hand, disapproval, like anger and revenge, 
forms a sub-species of retributive kindly emotion." (E. Westermarck, The 
Origin and Development of the Moral Ideas, London, 1906, Vol. I, p. 21.) 

While Westermarck is justified in pointing out the moral significance of 
these so-called emotions, he has failed to include the instincts which have 
the same significance. It should also be noted that his "moral emotions" 
are sentiments rather than emotions, since they are too complex to be re- 
garded as distinct emotions. 

Sutherland enumerates various sympathetic emotions which, he asserts, 
constitute what he erroneously calls the "moral instinct": — 

"The moral instinct, therefore, is, in social animals, the result of that 
selective process among the emotions which tends to encourage those that 
are mutually helpful, and to weaken those that are mutually harmful." 
(A. Sutherland, The Origin and Growth of the Moral Instinct, London, 1898, 
Vol. II, p.304.) 

It is evident that Sutherland ignores the moral significance of the con- 
genital traits that lead to conduct which is unfavorable to others. 



376 CRIMINOLOGY 

social impulses, which lead to liking, approval, gratitude, love, 
altruistic and humanitarian acts, etc. These congenital traits 
are shared in a measure by the other higher animal species. 
However, it can scarcely be said that any of these animals have 
reached the moral plane, for it is doubtful if any animal other 
than man has ever made a moral judgment, that is to say, has 
ever consciously characterized an act as right or wrong. It was 
the superior excellence of the human intellect which enabled 
man to rationalize the conduct which arose from these congen- 
ital traits. 1 

As man developed language which enabled him to commu- 
nicate with his fellows, he was forced to characterize and to try 
to account for his acts. So that there evolved slowly in his mind 
and consciousness the concepts of right and of wrong, of justice 
and of injustice, of rights and of duties. These concepts are now 
shared in some measure by all human beings, and constitute 
moral standards and codes, which influence human conduct 
materially. Consequently, we may define conduct having a 
moral significance as human behavior which has been subjected to 
moral judgments. 

It goes without saying that these moral judgments have fre- 
quently been mistaken, in the sense that they have not been 
based upon an accurate knowledge of the facts of nature. Con- 
sequently, they have frequently done harm to mankind. But 
a selective process has constantly been at work in the course of 
which the false and harmful judgments have gradually been 
eliminated, and the desirable ones have been retained. This 
selective process has been due largely to the struggle for existence 
between individuals and between social groups. The conditions 

1 Cf. C. Darwin, The Descent of Man and Selection in Relation to Sex, 
London, 1871, Vol. I, pp. 71-73. 

"The following proposition seems to me in a high degree probable — 
namely, that any animal whatever, endowed with well-marked social in- 
stincts, would inevitably acquire a moral sense or conscience, as soon as its 
intellectual powers had become as well developed, or nearly as well de- 
veloped, as in man. ... It may be well first to premise that I do not wish 
to maintain that any strictly social animal, if its intellectual faculties were 
to become as active and as highly developed as in man, would acquire ex- 
actly the same moral sense as ours. In the same manner as various animals 
have some sense of beauty, though they admire widely different objects, so 
they might have a sense of right and wrong, though led by it to follow 
widely different lines of conduct." 



THE MORAL BASIS OF PENAL RESPONSIBILITY 377 

of this struggle have been determined by the environment and 
the stage in social evolution attained by the groups involved. 
In the long run, therefore, moral standards and codes are certain 
to be utilitarian and hedonistic. l 

Moral Concepts and Social Control 

Moral concepts have always been enforced in a measure in 
each social group by some means of social control. Gradually 
has evolved in greater richness and detail the concept of justice 
as including, on the one hand, the recognition and safeguarding 
of rights, and, on the other hand, the enforcement of duties. 
The penal function has evolved for the purpose of guaranteeing 
justice and suppressing injustice. With the organization of the 
political state came into being law, in the technical sense of that 
word. Since that time moral ideas have been recognized and 
embodied to a certain extent in the law. The penal division of 
the law has been the most drastic means of enforcing these moral 
ideas, and has, therefore, taken its place as the principal form 
of social control. 

It is obvious that organized society is impossible without social 
control. But it is also true that an excessive amount of social 
control will do harm as well as the lack of it, There is always 
present the danger of coming to regard social control as an end 
instead of a means to an end. When this happens, such control 
is almost certain to become excessive. An excess of social con- 
trol results in interfering unduly with the spontaneous expres- 
sion of human nature which should be the object of civilization. 
Another almost inevitable result from excessive social control is 
that those who administer the means of control forget human 
beings as individuals in favor of an abstract mankind, which is 
meaningless. So that it is essential in studying social control 
to bear in mind not only the necessity for a certain amount of 
it, but also the danger of having too much of it. 

Hence it is that in discussing the treatment of crime we should 

1 The following attempts to emancipate ethics from theological and meta- 
physical speculation, and to place it upon a scientific basis may be men- 
tioned: — J. M. Guyau, A Sketch of Morality Independent of Obligation or 
Sanction, London, 1898; G. L. Duprat, Morals: A Treatise on the Psycho- 
Sociological Bases of Ethics, London, 1903. wSee also, in this connection, 
J. L. de Lanessan, La morale des religions, Paris, 1905. 



378 CRIMINOLOGY 

consider not only the need for repressive measures, but also the 
importance of conserving the freedom of the individual as far 
as is compatible with the welfare of society. I have already 
shown how autocratic and oligarchic government and religion 
have frequently overstepped the bounds of justifiable social 
restraint upon the individual, usually in the interest of a small 
group, such as a royal family, a priestly class, a hereditary 
nobility, etc. But the same thing happens even in communities 
which are supposed to be democracies, either because a small 
group has usurped an undue amount of authority which it is 
using for its own benefit, or because the unthinking majority of 
the population of the democracy, swayed by the passions and 
prejudices characteristic of the mob spirit, is imposing unjust 
restrictions upon the minority. 

The Theory or Penal Responsibility 

In view of these facts it is obvious that the theory of the penal 
responsibility of the individual is of fundamental importance 
in the treatment of the criminal. In many savage and barbarous 
communities the responsibility for acts regarded by the com- 
munity as anti-social has rested upon the group to which the 
guilty individual belonged, as, for example, his family or his 
clan. This was due to ideas with regard to blood kinship, etc., 
which there is not the space to discuss here. But in all probabil- 
ity even in these communities the individual was held respon- 
sible for his own acts within his own group. With the advent 
of civilization the individual came to be recognized more clearly 
as a distinct unit, and social responsibility for crime very largely 
disappeared to be replaced by individual responsibility. 

Individual penal responsibility has been placed upon different 
bases. In accordance with the religious sanction for punish- 
ment the individual is held responsible for having violated the 
divine law, and thereby committing an offense against the deity 
who is usually regarded as his creator. In accordance with the 
moral sanction for punishment the individual is held responsible 
for having violated the absolute moral law which he is in duty 
bound to obey for a metaphysical reason which is too tenuous 
for the non-metaphysical mind to comprehend! In both of these 
cases there has usually been assumed a free will which gives 



THE MORAL BASIS OF PENAL RESPONSIBILITY 379 

the individual freedom of choice to heed the divine or moral 
law or not as he chooses. If therefore he is guilty of the turpi- 
tude of choosing to violate the absolute law, there is every reason 
why he should be held responsible for the dire consequences of 
his acts. 

In accordance with the social sanction for punishment the 
individual is held responsible for having injured society. In 
this case also a free will has frequently been assumed. Inas- 
much as according to this assumption the individual is free to 
refrain from injuring society, he should be held responsible for 
doing injury to society. When he commits anti-social acts the 
individual has, so to speak, opened war upon society, which must 
defend itself against him. He must, therefore, take the conse- 
quences of his acts. 

Free Will and Determinism 

But the progress of science has destroyed for all practical 
purposes the theological and metaphysical doctrine of a free 
will. Scientific research has extended the concept of natural 
causation to all observed phenomena. Physiology, psychology, 
and the social sciences have extended it to human behavior. 1 
So far as we can see, every human act like the acts of every 
living being is determined by natural causes. For example, an 
injury to the nervous system may have a marked effect upon the 
behavior which in many cases can be predicted. Disturbances 
of the physiological processes may have equally great effects. 
The mental processes are constantly being influenced by stimuli 
which are being received from the environment through the 
nervous system. The effects of different kinds of food, of poisons 
like alcohol and the narcotic and hypnotic drugs, of climatic 
and weather conditions, etc., can more or less readily be traced. 

In fact, the behavior of any individual is the resultant of a 
complex of many factors which are comprized in the inherited 
structure, the traits which have been acquired as a consequence 
of past environment, and the immediate environment. So that 
we can trace in a measure how the congenital instincts and emo- 
tions are modified under the influence of the given environ- 

1 Ample evidence of the natural determination of human behavior is fur- 
nished in my Science of Human Behavior, New York, 1913. 



380 CRIMINOLOGY 

fnent, and how the intellect is developed and directed in the 
course of the life experience of the individual. 

In view of these ineluctable facts with regard to the natural 
determination of human behavior the theological and meta- 
physical freedom of the will fades away into nothingness. 1 The 
question may then be raised as to whether there can be such a 
thing as individual responsibility for conduct, or indeed human 
responsibility of any sort. Certainly not in the theological and 
metaphysical sense, but it can exist in the positive, scientific 
sense. 

While it is true that the human organism and human nature 
have been determined by all the forces which have acted upon 
them, it is also true that this organism is a complex mechanism 
and center of energy from which radiate stimulations and im- 
pulsions which may have far-reaching consequences. Further- 
more, as an organism it is highly self-directing, more so, indeed, 
than any other organism. Consequently, we have every reason 
to regard the human organism as an efficient cause of the deeds 
which emanate from it, and the consequences of those deeds. 
In this positive and scientific sense, then, we may regard the 
individual as reponsible for his conduct. 

But the above-mentioned responsibility is much broader than 
moral responsibility, while penal responsibility is ordinarily 
even more limited than moral responsibility. In every punitive 
system the extent and nature of penal responsibility has de- 
pended not only upon the prevailing conception of the human 
will, but also upon the recognized objects and purposes of penal 
treatment. Furthermore, in the theological and metaphysical 
systems exceptions had to be made on account of certain ob- 
vious features of human nature, however inconsistent these 
exceptions may have been with the theological and metaphysi- 
cal theories. 

I have already stated that according to the religious sanc- 
tion for penal treatment the object of punishment is punitive 
and expiatory, according to the moral sanction it is reparatory 
and exemplary, and according to the social sanction it is pre- 
ventive and deterrent. But in practise these objects have been 

1 See, for a detailed criticism of the doctrine of free will and an exposition 
of the theory of determinism as applied to penal responsibility, R. M. Mc- 
Connell, Criminal Responsibility and Social Constraint, New York, 191 2. 



THE MORAL BASIS OF PENAL RESPONSIBILITY 38 1 

more or less mingled, whatever the alleged sanction might be. 
Punishment with a religious or moral sanction has frequently 
been regarded by those administering it as being deterrent and 
preventive as well. Punishment with a social sanction has 
sometimes been regarded as punitive and exemplary as well. 

The Psychological Basis of the Penal Function 

The reason for this mingling of the objects of punishment 
is that back of all of these sanctions are the fundamental human 
traits which give rise to social reaction against offenders. They 
are the emotions of anger and fear with the instincts which they 
accompany. Anger furnishes a basis for vindictiveness, which 
leads to acts of vengeance. This constituent element in punish- 
ment is most fully exemplified in the religious sanction. While 
the purpose of this sanction is alleged to be punishment and ex- 
piation for violations of the divine law, it is in reality a more or 
less unconscious expression of the vengeful spirit in man which 
appears here in a theological guise. So that while man has been 
punishing in the name of a deity, he has been giving vent to his 
own hateful feelings. Unfortunately this religious sanction for 
some of the most dangerous and unruly traits in human nature 
has consecrated and reenforced them in such a fashion as to 
increase greatly the amount of sternness and cruelty in human 
relations. This influence of religion has manifested itself in 
brutal treatment of criminals, in religious persecution, in 
innumerable wars, in slavery, in neglect of the sufferings of 
the sick and the poor, etc. 

Fear gives rise to impulses to remove, to flee from, and some- 
times to destroy the feared object. This constituent element in 
penal treatment is most fully exemplified in the social sanction. 
It is fear that gives the initial dynamic impulse to the desire to 
remove or destroy the persons who commit what are regarded as 
harmful deeds, and to prevent others from committing similar 
deeds. So that the deterrent and preventive motives for penal 
treatment doubtless arise on a basis of fear. 

Now anger and fear are closely connected in the mental 
makeup. Fear is very likely to lead to anger, and thus to add 
vengeance to the deterrent and preventive motives for punish- 
ment. Fear is in itself an unruly trait which is liable to assume 



382 CRIMINOLOGY 

an exaggerated form, and thus to stampede its subject into 
hasty and foolish acts. It is, therefore, doubly unfortunate that 
it should be reenforced by anger. The consequence frequently 
is that penal treatment is carried far beyond the needs of social 
defense against anti-social acts, and sometimes does more harm 
than good. 

It is evident, therefore, how important it is to rationalize 
punishment, and to put these unruly emotions as much as possi- 
ble under the guidance and control of the intellect. But it can- 
not be said that the penal sanctions I have described have done 
so successfully. At any rate, this is obviously true of the re- 
ligious sanction. In the first place, there is grave question as to 
the existence of the deity and the divine law upon which this 
sanction is postulated. In the second place, even if we assume 
their existence, it is far from certain that man is sufficiently 
acquainted with the divine law or has the ability to enforce it. 
Consequently, the religious sanction is a very questionable and 
unstable basis for so important a function as the protection of 
society against anti-social acts. 

Much the same can be said of the moral sanction for penal 
treatment which is postulated upon the existence of an absolute 
moral law. After all, this is merely a somewhat more philosophic 
statement of the theological theory. It may lend itself a little 
more readily to the purpose of protecting society against harm- 
ful conduct. But neither the theological nor the metaphysical 
theory is adequate or suitable for an effective program of deter- 
rence and prevention against crime. 

The social sanction is the most successful in rationalizing the 
penal function. It is not based upon any uncertain and prob- 
ably mythical divine or absolute moral laws. It contemplates 
no indefinable and unknowable transcendental objects to be 
attained, but is limited to purely human and social interests. 
It is relative and inductive in its methods, and therefore lends 
itself readily to pragmatic and hedonistic ends. 

But those who have advocated and expounded the social 
sanction for punishment up to the present time have not under- 
stood clearly the mental mechanism which is back of the penal 
function. They have probably not realized fully, and sometimes 
not at all, the extent to which the motives of deterrence and 
prevention arise out of the emotion of fear. Consequently, they 



THE MORAL BASIS OF PENAL RESPONSIBILITY 383 

have not recognized frequently that this emotion is liable to run 
away, so to speak, with the penal function, and to lead to foolish 
and excessive uses of it. Furthermore, they have usually not 
realized at all that anger is almost inevitably a resultant from, 
or, to say the least, an accompaniment of fear, and therefore 
must always be borne in mind and reckoned with as an 
element in punishment. 

The exponents of the social sanction for penal treatment have 
been inspired by the legitimate and laudable desire to adapt and 
adjust the penal function as directly as possible to useful human 
and social ends. They have recognized that such emotions as 
anger and fear are irrational in the sense that they are not in- 
tellectual phenomena, and their tendency has been to ignore 
them. They have failed to realize that however unreasonable 
and harmful these emotions frequently are, they are inextri- 
cable traits in human nature which must always be reckoned 
with. 

The wise policy therefore is not to forget these emotions but to 
remember them, and to endeavor to direct and control them as 
best we may by means of the intellect. This can be accomplished 
by two principal means. In the first place, a social organization 
should be developed which will put effective checks upon the 
expression of these emotions. In the second place, there should 
be disseminated by educational and other means certain ideas 
which will give to the young as they approach maturity an 
understanding of these affective traits, and will aid each genera- 
tion to direct and control these emotions wisely. 

Let us now apply these fundamental principles and concepts 
to the idea of punishment in order to determine its nature and 
limits, and also in order to ascertain the nature and extent of 
the penal responsibility of the individual. It is obvious that 
the concepts of punishment and of penal responsibility are basic 
to criminal law and procedure and to all forms of penal treat- 
ment, and it is therefore of the utmost importance to define these 
concepts as clearly as possible. 

In the first place, the law must enumerate the acts which are 
to be stigmatized as criminal. Some of these acts are obvious, 
such as those which endanger the person with death or physical 
injury. Other acts endanger the established social institutions, 
such as the right of private property, marriage, etc. The jus- 



384 CRIMINOLOGY 

tification for the prohibitions in the second group depends upon 
the value of these institutions. 

But there is reason to believe that many prohibitions are 
imposed out of fear of what is new, or, at any rate, what is new 
in the experience of the individual. It is difficult for the human 
mind to adjust itself to things to which it is not accustomed. 
Conservatism and social conventions are due to this mental 
trait. Consequently, sumptuary legislation and other laws 
repressing unconventional conduct come into being. 

Fear is, therefore, both useful and harmful. It is useful in so 
far as it guards against forms of conduct which are unques- 
tionably injurious to mankind. Furthermore, it acts as a check 
upon changes which may not prove to be desirable. But, on the 
other hand, it stands in the way of many changes which will 
prove to be beneficial, and thus impedes social progress. Fur- 
thermore, it prevents the highest possible degree of free activity 
on the part of human beings, and thus hinders the spontaneous 
expression of human nature which should be the principal object 
of civilization and of human culture in general. 1 

When we turn to the reaction against the criminal offender, 
we find the situation complicated by the emotion of anger. It is 
probably inevitable that feelings of resentment if not of hatred 
are manifested towards the person guilty of conduct which is re- 
garded as harmful. As a consequence of these feelings there is 
sure to be an element of vengeance in punishment. As I have 
stated in Chapter II, in the early stages of culture this feeling 
displayed itself not only against human beings, but also against 
animals and even inanimate things. But when man came to 
understand more clearly the causation of events in the world, he 
realized that no purposive harm could be done to him by in- 
animate things, and rarely if ever by animals. 

The Doctrine of Partial Responsibility 

Consequently man came to limit the concept of moral and 
penal responsibility to human beings. But in course of time 
he recognized that this responsibility was limited even with 

1 1 have outlined this object of civilization in the last chapter of my 
Poverty and Social Progress, New York, 19 16, entitled "Social Progress and 
the Coming of the Normal Life." 



THE MORAL BASIS OF PENAL RESPONSIBILITY 385 

respect to certain groups of human beings. This recognition was 
due to a perception of the obvious fact that these human beings 
were laboring under an intellectual disability which rendered 
them incapable of comprehending the nature of their acts, and 
therefore of doing harm purposely. In this fashion arose the 
theory of the partial or complete irresponsibility of the young, of 
imbeciles, of lunatics, of intoxicated persons, etc. 

This theory was, of course, totally inconsistent with the belief 
in a free will, for if the will is indeed free it must be independent 
of merely material conditions, and could not be influenced by 
such inconsequential matters as physical and mental immaturity, 
an undeveloped or deranged nervous system, an organism poi- 
soned by alcohol, drugs, etc., and other unimportant physical 
conditions over which the spirit should ride triumphant. But for 
once common sense conquered theological dogmatism and 
metaphysical ideology, and now theology and metaphysics are 
trying to patch things up by means of an absurd doctrine of a 
limited free will, whatever that contradiction in words and ideas 
may be. 

The appearance of the doctrine of a limited moral and penal 
responsibility for some human beings is of great significance. 
It indicates that the spirit of vengeance can be guided and con- 
trolled to a certain extent when enlightened by the intellect. 
It furnishes hope that this intellectual guidance and control will 
become much greater in the future. It would become most 
powerful if men could attain a clear understanding of the theory 
of determinism, and would apply this theory consistently in the 
treatment of the criminal. Criminals would then be punished 
in accordance with their individual traits and in order to attain 
the socially useful ends of punishment, by removing the offender 
from society, by reforming his character, or in some other way. 

But it will probably always be impossible to eliminate ven- 
geance entirely from penal treatment. Indeed, some writers 
contend that this spirit of vengeance has great utility, and 
therefore should not be eliminated. Their theory is that the 
resentment and hatred felt towards the criminals gives rise to an 
emotional reaction which stimulates and enhances the moral 
indignation felt towards the evil acts of the criminals. Thus the 
offenders are made to personify in a measure in the public mind 
the hatefulness of their acts, and without this concrete per- 



386 CRIMINOLOGY 

sonification the public indignation towards evil conduct would 
not be as great as it should be. x 

There is doubtless a measure of truth in this theory. But 
it is highly probable that the spirit of vengeance will always be 
strong enough to perform this useful function without any 
artificial encouragement. Indeed, the usual if not the constant 
danger is that this spirit will be too strong, and will not subject 
itself sufficiently to the guidance of the intellect. 

We can now see both the utility and the dangers of the emo- 
tions of fear and of anger for the penal function. These emotions 
doubtless evolved because of their great value for the preserva- 
tion of the individual in the struggle for existence. They are 
now furnishing much of the dynamic impulse for the measures 
being used for the protection and preservation of society. But 
they need to be curbed and rationalized by the intellect. Other- 
wise there is always the danger of their sinking to the level of 
lynch law. 

If the degree of punishment to be inflicted was to be deter- 
mined solely by the feeling of vengeance aroused by the offense, 
the amount of punishment meted out would be measured pre- 
sumably by the heinousness of the act. But even under the 
religious and moral sanctions the penal responsibility of some 
individuals has been regarded as limited, and, consequently, 
their penalties have been more or less attenuated. This was 
doubtless due in part to the fact that kindly feelings in behalf 

1 Among the writers who have expounded this theory are A. Shaftesbury, 
Characleristicks, London, 1733, Vol. II; J. F. Stephen, A History of the 
Criminal Law of England, London, 1883, Vol. II; E. Durkheim, De la 
division du travail social, 2d ed., Paris, 1902. Westermarck has stated the 
theory recently in the following words: — 

"Whether its voice inspire fear or not, whether it wake up a sleeping 
conscience or not, punishment, at all events, tells people in plain terms what, 
in the opinion of the society, they ought not to do. It gives the multitude 
a severe lesson in public morality; and it is difficult to see how quite the 
same effect could be attained by any other method. Retaliation is such 
a spontaneous expression of indignation, that people would hardly realise 
the offensiveness of an act which evokes no signs of resentment. Of course, 
punishment, in the legal sense of the term,' is only one form — the most 
concrete form — of public retaliation; it is, indeed, probable that public 
opinion exercises a greater influence on men than punishment would do 
without its aid. But punishment, in combination with public opinion, has 
no doubt to some extent an educating, and not merely a deterring, influence 
upon the members of a society." (E. Westermarck, op. cil., Vol. I, p. 90.) 



THE MORAL BASIS OF PENAL RESPONSIBILITY 387 

of certain offenders were aroused in the witnesses, and some- 
times even in the victims of their offenses. For example, on 
account of their youth compassion would be aroused in behalf 
of young offenders. Sympathetic feelings would arise in behalf 
of offenders who committed their acts under the stress of peculiar 
circumstances, such as the influence of a strong passion. 

Furthermore, as the causes of human conduct came to be 
understood more clearly, the moral and penal responsibility 
of certain groups was lessened on the ground that they were 
incapable of comprehending the nature of their acts, and there- 
fore could not intend to commit wrong. So that the responsi- 
bility of the young, the feebleminded, the insane, etc., came 
to be limited. 

Penal Responsibility and the Individualization of 
Punishment 

In this book I have described the physical and mental traits 
of criminals, and the economic, political and other factors which 
influence their conduct. I have shown the high degree of varia- 
tion between the traits and conditions which determine the 
conduct of different criminals, even when their acts are similar. 
These facts indicate the wisdom of treating each criminal with 
due regard to his peculiar traits and conditions, and not treating 
all criminals alike. In fact, the modern scientific study of the 
criminal and the causes of crime has resulted in the enunciation 
of a new fundamental principle of penal treatment, namely, 
the principle of the individualization of punishment. 

One of the most difficult of the criminological problems of 
today is to adjust to each other and to harmonize the theory 
of penal responsibility and the principle of the individualization 
of punishment. 1 Penal responsibility in the past has been 
based in the main upon the notion of a free will which is in 
theory the same for all, though, as is pointed out above, various 
exceptions arose in practise. The modern principle of individual- 
ization is based upon the ascertained facts with regard to the 

1 1 have discussed the theory of penal responsibility and the principle 
of the individualization of punishment at greater length in my book entitled 
The Principles of Anthropology and Sociology in Their Relations to Criminal 
Procedure, New York, 1908, especially Chapters III, IV, and V. 



388 CRIMINOLOGY 

extensive intellectual and volitional differences between in- 
dividual offenders. 

Now if penal responsibility is based upon the social sanction 
for punishment, it is essential to take cognizance of these facts, 
inasmuch as according to this sanction the purpose of punish- 
ment is the defense of society against anti-social acts. The 
application of the principle of individualization makes this social 
defense much more effective, because it adds to the methods of 
elimination and restraint the method of reformation. At 
the same time, the inevitability and the slight utility of the 
spirit of vengeance will doubtless always place a limit upon the 
extent to which punishment can be individualized. 

These problems with respect to the theory of penal responsi- 
bility and the principle of the individualization of punishment 
will be discussed in the following chapter. I shall show that a 
positive basis for penal responsibility is possible in imputing 
crime to the traits of the individual, and that this positive crite- 
rion of penal responsibility permits of a large measure of in- 
dividualization. 



CHAPTER XXIV 

THE SENTENCE AND THE INDIVIDUALIZATION OF 
PUNISHMENT 

The fundamental principle of modern criminal law — The types of indi- 
vidualization: legal; judicial; administrative — The criteria of in- 
dividualization: the crime; the criminal; social conditions; the origin, 
type, and intensity of the criminality — Limitations upon individualiza- 
tion — The indefinite sentence — Suspension of sentence and proba- 
tion — The penal treatment of the young: the juvenile court — Ju- 
dicial and administrative individualization: rehabilitation; periodical 
revision of sentences. 

The accused having been tried and found guilty, it becomes 
incumbent upon the court to impose sentence. In the following 
chapters will be described the death penalty, imprisonment, 
and other forms of punishment. At present we shall consider 
the principles which should guide courts in deciding upon ap- 
propriate penal treatment for those convicted. 

In recent years there has been a strong tendency to adjust 
the treatment of the criminal to his character rather than to 
the nature of his crime. This method has come to be known 
as the individualization of punishment. In the United States 
has originated the indeterminate, or rather the indefinite, sen- 
tence, according to which the duration of punishment of crimi- 
nals guilty of the same crime may vary greatly from one crim- 
inal to another. The system of fixed penalties still obtains 
almost everywhere in Europe, but the device of recognizing 
extenuating circumstances has been introduced to temper the 
rigidity of this system. In this country also originated sus- 
pension of sentence with probation or parole, which has been 
copied in England under the name of conditional release and 
in France under the name of condamnation conditionelle or 
sursis, and which now exists in many other countries. 

Previous to the French Revolution upon the European Con- 
tinent the fixation of the penalty was largely in the hands of the 
judge. Furthermore, the judge frequently had considerable 



390 CRIMINOLOGY 

authority in deciding what acts are criminal. This was a dan- 
gerous power in the hands of judges, and was frequently mis- 
used in the interests of despots and oligarchies. It called forth a 
vigorous protest from the eighteenth century philosophers whose 
ideas formed the basis of the French penal code which was 
formulated soon after the Revolution. The arbitrary power of 
judges had already come to be limited in England by parliamen- 
tary government. 

The Fundamental Principle or Modern Criminal Law 

The fundamental principle of modern criminal law is expressed 
in the famous axiom, " nullum crimen, nulla poena sine lege" or, 
as it is sometimes worded, u nulla poena sine lege criminali." 
This axiom means that no one can be prosecuted for an act 
which has not been made a crime by law before its commission. 
This principle was recognized in 1787 in the section of the Amer- 
ican Constitution forbidding ex post facto legislation. It was 
applied by the French National Assembly immediately after 
the beginning of the Revolution in the famous declaration of 
rights of August 26, 1789, and again in the law of January 21, 
1790, which is the basis of French penal legislation. It is recog- 
nized and safeguarded in all modern constitutional and statutory 
legislation. 

Modern civilization can never again tolerate judges who are 
responsible only to a monarch, or oligarchy, or aristocratic class, 
or, as the ecclesiastical judges claimed, responsible only to God. 
The power of the judge must be legal. That is to say, it must 
be conferred upon him by a law created by the people, or enacted 
by a legislature which represents the people. The judge thereby 
becomes responsible to the people from whom he derives his 
power. So that this principle is an important democratic prin- 
ciple which must always be safeguarded as a protection against 
autocracy and tyranny. 

In accordance with this principle the legislative power must 
always specify which acts are criminal. Otherwise social defense 
against crime would become no more than the expression of the 
private standard of morality of the judge, or of the monarchical 
or oligarchical authority which he represents. Furthermore, the 
police would not know against what acts to take action as being 
criminal. 



INDIVIDUALIZATION OF PUNISHMENT 39 1 

But the practical application of the second part of the above- 
mentioned axiom, namely, "nulla pcena sine lege" may vary 
somewhat. The penal code adopted after the French Revolu- 
tion reacted against the arbitrary power of the judges by fixing 
absolutely the penalty for each crime. But this code was not 
successful, because the jury insisted upon giving its verdicts in 
accordance with the penalties they would entail. Consequently, 
the jury was permitted to recognize extenuating circumstances, 
and the penalty was no longer absolutely fixed by the law. How- 
ever, the individualization of punishment does not mean that the 
fundamental principle of modern criminal law is to be denied. 
Punishment cannot and ought not to be inflicted under any 
circumstances which have not been foreseen by the law. But 
this principle does not require that the law shall specify before- 
hand the exact amount and character of the penalty in each in- 
dividual case. 

The Types of Individualization 

In the United States the idea of reforming the criminal has 
been prominent. It resulted in the early part of the nineteenth 
century in experiments in the construction and administration 
of penitentiaries which attracted the attention of Europe. Later 
the indeterminate sentence, suspension of sentence, probation, 
etc., were introduced. These changes were stimulated mainly 
by private initiative, and have been put into effect largely by 
private agencies. They have been inspired partly by philan- 
thropic and humanitarian ideas, and partly by a religious zeal 
for the moral regeneration and religious conversion of the crim- 
inals. In the latter respect this kind of individualization is like 
that of the canonical law of the dark and middle ages as prac- 
tised in the ecclesiastical courts. The judges of these courts 
believed that justice is in the hands of God, and they had not 
the objective aim of adjusting the punishment to the crime com- 
mitted, but the subjective aim of working for the regeneration of 
the criminal. 

The general tendency of these American modifications has 
been towards leniency. Rarely, if ever, has greater severity of 
treatment been advocated. Since emphasis has been laid prin- 
cipally on the criminal himself, these changes have been develop- 
ing a sort of individualization. But it has not been inspired by 



392 CRIMINOLOGY 

science, and has, therefore, not been controlled by scientific 
principles. Since little or no study of the criminal has been made 
in this country, it has been almost if not quite as empirical as 
the individualization made by the jury by means of the recogni- 
tion of extenuating circumstances. The aim of social defense 
has been rather vaguely conceived, and has, therefore, had little 
influence, as has been shown by the almost universal tendency 
towards leniency. 

Three kinds of individualization have been distinguished, 
namely, legal, judicial, and administrative. Strictly speaking, 
there can be no such thing as legal individualization. The 
legislator does not know the person for whom he is legislating, 
and therefore cannot adapt the penal treatment to this particular 
individual. The term has been "applied to laws which furnish 
a basis and provide for individualization of other kinds, as, for 
example, a legal classification of criminals according to their 
types. But in order that this law may be applied to the indivi- 
dual criminal, the intervention of another agency is needed. 
Judicial individualization is exercized in the course of criminal 
procedure, during which the character of the criminal is 
diagnosed and appropriate penal treatment is prescribed. Ad- 
ministrative individualization is effected by the penal adminis- 
tration in the course of the penal treatment. 

The Criteria of Individualization 

A criterion is needed for judging the character of the crim- 
inal. The criminal act is an uncertain and insufficient indication. 
The motive of the act is superior to the act as a criterion, be- 
cause it is subjective in its character. In the case of some crimes 
of the most heinous sort the motive is adequate evidence of the 
character of the criminal. But most cases are not so easy to 
decide. There is usually the practical difficulty of ascertaining 
the motive. Inasmuch as this is an intangible thing, and is not 
always revealed by the circumstantial evidence, it frequently 
remains in obscurity. 

An individual not at all criminal in character may at times 
commit a crime with a bad motive. On the other hand, a person 
of a criminal character may commit a crime with a good motive, 
but the crime may be such as could be committed only by an 



INDIVIDUALIZATION OF PUNISHMENT 393 

individual of criminal character, so that in such a case the act 
might in reality be a better indication of character than the 
motive. Like the act itself, the motive usually reveals only a 
small part of the personality during a limited period of time. It is 
an indication of character, and may serve as a, presumption on 
which to base further investigation, but it is not a broad enough 
basis upon which to decide the penal treatment to be prescribed. 

In accordance with the principle of social defense against 
crime, the sanction for punishment is the dangerousness of the 
criminal to society. The criterion of judgment is threefold, in- 
cluding the crime, social conditions, and the criminal. In 
developing a criterion of penal responsibility the whole human 
personality must be taken into account, including the instincts, 
the emotions, the intellect, etc. The same is true of individual- 
ization. No more than penal responsibility can it be based upon 
a single element of the personality. We must, therefore, con- 
sider by what means a knowledge of the personality of the crim- 
inal can be secured. 

The criminal act and its motive, so far as the motive can be 
ascertained, have been mentioned. Then there is the life history 
of the criminal, revealing his previous criminal record, if he has 
any such record, his education, his vocation, his manner of life, 
etc. In the last place, there are the facts that may be learned 
by means of a physiological and psychological examination. The 
fact that the offender is a professional or an occasional criminal, 
is feebleminded or insane, is a neurasthenic or an epileptic, is 
a significant indication of the kind of penal treatment needed. 

Having gathered this information about the personality of the 
criminal, in what ways can it be used in determining his penal 
treatment? His criminality must be studied from several points 
of view, namely, from that of its origin, of its type, and of its 
intensity. From no one of these points of view alone can the 
penal treatment be determined, but all must be considered be- 
fore a satisfactory decision can be reached. 

In the first place, the origin of the criminality is a very im- 
portant piece of evidence, whenever it can be ascertained, and 
should influence the penal treatment greatly. The fact as to 
whether the criminality is congenital or acquired, whether it is 
nervous or anatomical in its origin, may cause great variations 
in the treatment applied. At the same time, two forms of 



394 CRIMINOLOGY 

criminality with different origins sometimes require the same 
kind of treatment, as, for example, when it is a question of total 
elimination, the same kind of elimination will serve for criminali- 
ties having very different origins. 

In the second place, the type of the criminality, or the kind 
of crime in which it results, must be considered. The criminals 
may be classified to a certain extent according to their types 
of criminality, with appropriate penalties for each type. But 
this system is not certain to be accurate, because two criminals 
displaying the same type of criminality may have different 
origins, and therefore require different methods of treatment. 
For example, two burglars may have become criminals for en- 
tirely different reasons, and it would be absurd to treat all 
burglars alike. On the other hand, criminals of the same origin 
may commit different kinds of crime, and yet require the same 
kind of treatment, on account of their similar origin. 

In the third place, the intensity of the criminality must be 
considered, namely, as to whether it is profound, and therefore 
incorrigible, or superficial and temporary, and therefore reform- 
able. If it is incorrigible, measures of surety, such as permanent 
incarceration, may be required. If it is temporary, measures 
of intimidation, or of reformation, may be needed. 

These three points of view are by no means independent of 
each other, but, on the contrary, overlap more or less. It is 
true that criminalities of the same origin, or of the same type, 
usually need the same kind of treatment, and to a less degree 
that is also true of criminalities of the same intensity. But all 
three must be considered before penal treatment can be pre- 
scribed accurately. 

Limitations, upon Individualization 

There is a practical limit to the extent to which the individual- 
ization of punishment can be carried. For financial reasons, 
if for no other, it would be impossible to prescribe special treat- 
ment for each of the many thousands who are constantly passing 
through the courts, while such a high degree of individualiza- 
tion would, as a rule, have no utility. It is, therefore, neces- 
sary to establish a more or less detailed classification based upon 
the three points of view designated above. The individualizing 



INDIVIDUALIZATION OF PUNISHMENT 395 

would then consist in determining the class of each criminal. 
Such a classification should be developed out of the experience 
of the courts and of the penal administration, an experience 
tested and controlled by statistics of recidivism and of the ex- 
tent of crime. 

Furthermore, it would be dangerous to individual rights and 
personal liberty if unlimited powers of individualization were 
put into the hands of the courts and penal administration. How- 
ever efficient these may become, errors will always be possible. 
Ordinarily these errors will be unintentional. In some cases 
political reasons may lead judicial and administrative officials 
to incarcerate indefinitely persons who are objectionable to 
them. Consequently, maximum limits should always be placed 
upon the powers of these officials, and rights of appeal should 
always be maintained. However desirable individualization 
of punishment may be for penological reasons, it would not be 
worth while to risk endangering fundamental democratic prin- 
ciples for this reason. Excessive enthusiasm for the principle 
of individualization on the part of reformers is likely to give 
rise to this danger, especially when they are ignorant of the 
history of the evolution of human liberty and personal rights. 

There is also a serious objection to individualization which 
indicates a further limitation upon the application of this prin- 
ciple. To many persons it appears as if individualization causes 
great injustice, because it results in an inequality of punish- 
ment for equal crimes. Consequently, there is danger that 
criminal justice will be discredited in the eyes of the public, and 
measures should be taken to avert this danger. 

It is probable that criminals sometimes feel that they are 
being treated unjustly when others who have been guilty of 
the same crime receive a lighter penalty. This can be obviated in 
part by the merit system in the penal institutions. A criminal 
should be made to feel that the severity and duration of his 
punishment depends largely upon himself, and that others are 
released with less punishment because they have earned more 
lenient treatment. But it might also be desirable if, on the oc- 
casion of every sentence, the judge would state publicly the 
reasons for the sentence, thus indicating its justice both to the 
criminals and to the non-criminal public. In this fashion both 
the criminals and the public at large might, in course of time, 



396 CRIMINOLOGY 

be educated up to the point of appreciating the justice of in- 
dividualizing punishment. 

From the point of view of social defense against crime, justice 
does not require that the same crimes shall always receive the 
same punishment. Justice both to society and to the individual 
frequently requires that the punishment shall vary greatly in 
cases where the crime has been exactly identical. So that the 
alleged injustice of individualizing punishment is in part non- 
existent. However, the criterion of judgment is threefold, in- 
cluding the crime and social conditions as well as the criminal. 
To forget these two considerations, and to individualize with 
only the criminal in mind, would be to ignore the purpose of 
social defense. 

There undoubtedly exists in the public consciousness a desire 
to punish crimes according to a graduated scale of severity. 
It has been suggested above that the public may be educated 
up to the point of accepting individualization without demanding 
punishment for the crime. However, it is doubtful if the public 
can ever be induced to accept thoroughgoing individualization. 
Furthermore, the public demand for a graduation of penalties 
according to the gravity of the crimes has some social justifica- 
tion which must be recognized. 

I have shown in the preceding chapter that the original sources 
of punishment are the powerful emotions of fear and of anger. 
These emotions are prone to lead the individual and society 
to acts of excess in repressing the objects towards which these 
emotions are directed, and therefore are in need of regulation 
and restraint. The principle of individualization should furnish 
one of the methods of regulating the punitive manifestations 
of these emotions. But it will always be necessary to permit 
public vengeance, as manifested through the penal law, to stig- 
matize the graver crimes effectively by attaching heavier penal- 
ties to them. Thus will these crimes be made to appear more 
odious even to those who have no thought of committing them, 
and the standard of public morality can thereby be raised. In 
this fashion the public can display its displeasure against dan- 
gerous anti-social conduct as personified by the criminals who 
commit these acts. 

It is evident, therefore, that the principle of individualiza- 
tion must be adjusted to the need for indicating the relative 



INDIVIDUALIZATION OF PUNISHMENT 397 

gravity of crimes. This is not an easy task, and can be accom- 
plished only through extensive experience. Crimes may be 
graded according to their gravity in the penal code. But this 
is not a sufficiently concrete and tangible mode of gradation, 
so that they must also be graded according to the kind or the 
duration of the penalties inflicted upon them. 

The Indefinite Sentence 

The indefinite sentence, frequently miscalled the " indeter- 
minate" sentence, combines in a measure the principle of indi- 
vidualization and a recognition of the gravity of the crime. So 
far as I know, a purely indeterminate sentence has never been 
put into effect. That is to say, a law providing for an entirely 
indeterminate sentence has never been enacted. But many 
laws have been enacted providing for a partially indeterminate 
or indefinite sentence, in which a maximum and sometimes a 
minimum limit for the duration of the sentence is specified. The 
first law of this nature was enacted in the State of New York, 
April 24, 1877, and provided for the release on parole of prisoners 
from Elmira Reformatory, before the end of their term of im- 
prisonment. Such a law is absolutely necessary for a reforma- 
tory system. Similar laws have since been enacted in various 
other states and countries for reformatories. The principle of 
the indefinite sentence has also been extended to imprisonment 
in other kinds of penal institutions, so that sentences to peniten- 
tiaries are frequently not absolutely fixed, but vary between a 
minimum and a maximum. 

One of the principal traits of the indefinite sentence is the 
appeal it makes to the self interest of the criminal. In the 
reformatories the release is determined mainly by the progress 
the inmate makes in learning a trade, and in his school work. 
In the penitentiaries the release is determined in the main by 
the conduct of the prisoner, a record of which is kept by means 
of marks and a system of grading. It is questionable if this is a 
good criterion of the fitness of the criminal to be liberated. The 
worst of criminals frequently display the best conduct in the 
prisons. The criterion for liberation should rather be the char- 
acter of the criminal, and the reformatory system is much more 
likely to judge criminal character aright. 



398 CRIMINOLOGY 

The decision as to the duration of the sentence within the 
limits imposed by law is made in many reformatories and other 
penal institutions by a parole board composed in part or entirely 
of persons outside of the prison management. By placing this 
power outside of the prison administration a check is placed 
upon its work, thus answering the criticism sometimes made 
of the indefinite sentence that it puts too much power in the 
hands of the prison keeper. It is probable also that in some if 
not in many cases the power of releasing from the penal institu- 
tions should be given to the judges who have imposed the sen- 
tences, and who could exercize this power by means of the 
periodical revision of sentences. 

In view of the limitations upon the principle of individualiza- 
tion which have been described above, it is evident that an in- 
determinate sentence is out of the question. It would indeed 
be incompatible with democratic principles to put an unre- 
stricted power of incarcerating for an indefinite period in the 
case of most crimes in the hands of a single person or group of 
persons. In Europe it took several centuries of struggle to 
deprive the judges who represented autocracies and oligarchies 
of this power. The Europeans, therefore, display a wholesome 
fear of the indeterminate sentence. 1 In this country, unfor- 
tunately, there are some prison reformers who, lacking an 
historical background and an acquaintance with fundamental 
political principles, have advocated an indeterminate sentence, 
and have in some cases succeeded in securing an indefinite sen- 
tence which is too extended in its scope. 2 

1 It is interesting to note that at the International Prison Congress at 
Washington in 19 10 the European delegates opposed vigorously the prin- 
ciple of the indeterminate sentence, and even displayed some hostility to 
the indefinite sentence. 

2 An illustration of such an indefinite sentence is to be found in a law 
enacted in New York State in 191 5. This law provides for a parole com- 
mission in each of the first class cities (New York, Buffalo, and Rochester) 
in the state. The commission is to consist of three members appointed by 
the mayor, the commissioner of correction, ex officio, and the commissioner 
of police, ex officio. This commission is to have jurisdiction over the release 
of prisoners from the workhouses, penitentiaries, and reformatories adminis- 
tered by these cities. The great majority of the inmates of these penal in- 
stitutions have been convicted of misdemeanors. The severest penalty im- 
posed for a misdemeanor in the New York State Penal Code is one year's 



INDIVIDUALIZATION OF PUNISHMENT 399 

But a considerable amount of individualizing can be accom- 
plished between the limits of the indefinite sentence, while the 
relative gravity of the various offenses can be recognized and 
indicated by the maximum limits of their respective penal- 
imprisonment and a fine of five hundred dollars. In spite of this fact, the 
parole commission can keep an inmate in the penitentiary for three years, 
and in the workhouse for two years for certain offenses. 

"The duration of the commitment of any person to the penitentiary shall 
not be fixed or limited by the court in imposing sentence, except that the 
term of such imprisonment in the said institution shall not exceed three 
years, and such imprisonment shall be terminated as prescribed in section 
five of this act. The duration of the commitment of any person to a work- 
house shall be for a definite period not to exceed six months, provided, 
however, that if it shall become known to the court through competent 
evidence at any stage of the proceeding prior to the imposition of sentence 
that any person convicted of vagrancy, disorderly conduct tending to a 
breach of the peace, public prostitution, soliciting on streets or public places 
for the purposes of prostitution, or frequenting disorderly houses, or a house 
of prostitution, of the violation of section one hundred and fifty of chapter 
ninety-nine of the laws of nineteen hundred and nine, as amended, has been 
convicted of any or each of these offenses two or more times during the 
twenty-four months just previous, or three or more times previous to that 
conviction, then the court shall commit such offender to a workhouse, of 
the said department of correction in said city for an indeterminate .period 
which shall not exceed two years." {Laws of New York, 1915, Chap. 579, 
Section 4.) 

According to the annual report of the Department of Correction of New 
York City for 191 5, there were in the Penitentiary of that city during that 
year 84 inmates for disorderly conduct, 129 for disorderly house keeping, 
248 for intoxication, 935 for petit larceny, 382 for vagrancy, etc. In other 
words, there were several thousand inmates guilty only of minor offenses 
who could be kept in prison for three years at the discretion of the parole 
commission. During the same year there were in the City Workhouse over 
twelve thousand inmates guilty of the six petty offenses mentioned in the 
law, for committing which offenses two, or three, or more times the parole 
commission could keep them in prison for two years. It is unwise to impose 
absolutely fixed penalties upon these offenders, many of whom are not in 
the least benefited by imprisonment. But it is unjust and dangerous to 
place the power of keeping these petty offenders in prison for two or three 
years in the hands of a parole commission representing solely the mayor. 
This would indeed be an easy method of "railroading" to prison opponents 
of the city administration, or political offenders. Even if this should never 
happen, it is grossly unjust to these petty offenders who have no recourse 
from the decisions of the commission, and no protection, except that magis- 
trates and judges who commit to the workhouse and reformatory may sit 
with the parole commission when it is considering the eligibility for parole 
of persons sentenced by them. 



400 CRIMINOLOGY 

ties. 1 Furthermore, recidivism should be recognized by the law 
as an aggravating circumstance, and the penalty should be in- 
creased accordingly, thus enlarging the opportunity for individ- 
ualization. 2 

Suspension of Sentence and Probation 

Another recent modification of criminal procedure which 
increases somewhat the scope of individualization is the suspen- 
sion of sentence, which releases a criminal from punishment on 
condition of good behavior in the future. Like the indefinite 
sentence, this reform originated in the United States. It was 
first introduced for juvenile criminals under the name of proba- 
tion in Massachusetts in 1869, and for adults in Boston in 1878. 
Since then it has been adopted in many states. In England the 
"Probation of First Offenders Act" was enacted in 1887. It is 
also known as conditional release in England. But this is a mis- 
leading name because it may be confused with the conditional 
liberation of criminals who have served a term of imprisonment. 
It was first introduced upon the continent in Belgium by the 

1 In New York State the so-called " indeterminate" sentence law for state 
prisons reads as follows : — 

"A person never before convicted of a crime punishable by imprisonment 
in a state prison, who is convicted in any court in this state of a felony 
other than murder first or second degree, and sentenced to a prison, shall 
be sentenced thereto under an indeterminate sentence, the minimum of 
which shall not be less than one year, or in case a minimum is fixed by law, 
not less than such minimum; otherwise, the minimum of such sentence shall 
not be more than one-half the longest period and the maximum shall not. 
be more than the longest period fixed by law for which the crime is punish- 
able of which the offender is convicted. The maximum limit of such sen- 
tence shall be so fixed as to expire during either of the following months: 
April, May, June, July, August, September and October." (TV. Y. Penal 
Code, 1915, Section 2189.) 

2 In New York State the law recognizes the following persons as habitual 
criminals: — ■ 

"Where a person is hereafter convicted of a felony, who has been, before 
that conviction, convicted in this state, of any other crime, or where a person 
is hereafter convicted of a misdemeanor who has been already five times 
convicted in this state of a misdemeanor, he may be adjudged by the court, 
in addition to any other punishment inflicted upon him, to be an habitual 
criminal." (N. Y. Penal Code, 1915, Section 1020.) 

According to the Code, an habitual criminal is subject to special super- 
vision of the local authorities even when he is at liberty. 



INDIVIDUALIZATION OF PUNISHMENT 401 

Le Jeune law enacted in 1888, and was adopted in France by 
means of the Berenger law which was enacted in 1891. In Bel- 
gium and France it is known under the name of condamnation 
conditionelle or sursis. Since that time it has been adopted 
in several other European countries, such as Portugal, Norway, 
Luxemburg, etc. 

In this country the power of suspending sentences, which 
judges under the common law could do temporarily, 1 has been 
greatly extended in some states, as, for example, in New York. 2 
But several precautions are taken against the abuse of this 
privilege by the criminals. The sentence is suspended only on 
condition of good behavior, and may be imposed later if the 
criminal misbehaves^. If a judge has reason to believe that a 
criminal whose sentence has been suspended is not leading an 
honorable and useful life, he can summon the criminal to court 
and inflict the penalty originally suspended. Furthermore, if 
the criminal is convicted of another crime, the original penalty 
can be inflicted in addition to the penalty for the new crime, for 
which he is treated as a recidivist. Another precaution is the 
work of the probation officer in whose custody the criminal is 
usually placed, and who watches over him for a time after his 
release. 

In England, no surveillance is maintained over the criminal 
after he is released on condition, but he is required to give bond 
for good conduct. A similar system exists in Massachusetts, 
where the probation officer has to act as surety for the good 
conduct of the criminal, thus stimulating the vigilance of the 
officer. 

1 In a recent decision of the Supreme Court of the United States {Ex parte 
United States, Petitioner, $j Sup. Ct. 72) the Chief Justice declared that 
under the common law a judge could only stay the execution of a sentence 
temporarily, until an appeal in behalf of the convicted person could be 
made to the Crown. (See Central Law Journal, Feb. 2, 19 17.) 

2 When a court must pass sentence "such court may in its discretion sus- 
pend sentence, during the good behavior of the person convicted, where the 
maximum term of imprisonment prescribed by law does not exceed ten years 
and such person has never been convicted of a felony. Courts of special 
sessions are empowered to suspend sentence and at any time within the 
longest period for which the defendant might have been sentenced, may 
issue process for the re-arrest of the defendant, and when arraigned the 
court as it is then constituted may proceed to enter judgment and impose 
sentence." (N. Y. Penal Code, 1915, Section 2188.) 



402 CRIMINOLOGY 

On the European Continent, no surveillance is exercized, and 
there is no bond for good conduct. The suspension of sentence 
is sacrificed only in case of a new crime. But, on the other hand, 
the power of suspending sentence has been given very little 
scope on the Continent, since it is limited usually to sentences 
no longer than six months. It can, therefore, be applied only 
to the milder offenses. 

Suspension of sentence is granted usually only to first offend- 
ers, even when this is not expressly required by the law. The 
underlying theory is that those who are not criminals by birth 
or habit, but who have committed crime through force of cir- 
cumstances, shall be given a chance to retrieve themselves, to 
begin life over again. 

The success of suspending sentences must depend largely upon 
the wisdom of the judge. Inasmuch as the existing procedure is 
intended primarily to ascertain the kind of criminal act which 
has been committed, and not to reveal the character of the 
criminal, it is only incidentally and by chance, as it were, that 
the judge learns anything about criminal character. It is, 
therefore, on the basis of a comparatively small amount of 
knowledge that he makes his decision. The result is that he is 
likely to acquire the habit of granting suspension of sentence in 
accordance with the circumstances of the crime, and not accord- 
ing to the character of the criminal. Under one set of circum- 
stances he will almost always grant the suspension, while under 
another set of circumstances he will almost invariably refuse it. 
At other times he will not be absolutely certain of guilt, and will 
therefore grant the suspension as a sort of compromize. 

The judge is more likely to make a wise decision when he is 
aided by a probation officer. After conviction he can remand 
the prisoner without imposing a sentence immediately, and can 
direct the officer to make an investigation. The officer ascer- 
tains all the available facts with regard to the character and past 
history of the criminal, and as much as possible about the cir- 
cumstances under which his crime was committed. He reports 
this information to the judge, frequently with a recommendation 
as to the best method of disposing of the case. With the aid of 
this information the judge can usually make a much wiser deci- 
sion. Furthermore, through the probation officer the judge is 
able to keep in touch with the criminal after his conditional 



INDIVIDUALIZATION OF PUNISHMENT 403 

release, and to impose the sentence if the criminal proves by his 
conduct that the confidence of the judge has been misplaced. 

In this country the probation system has been developed 
largely by private philanthropic agencies. Much of this proba- 
tion work has been done by volunteer workers who have been 
well-meaning, but many of whom, on account of lack of special 
training and experience and a sentimental point of view, have 
not been very efficient. Some of the probation work has been 
done by policemen, who, on account of their lack of education 
and prejudiced attitude towards criminals, are peculiarly un- 
fitted for such work. This work should be done by men and 
women who have had special criminological and penological 
training, and who are employed by the state. It would then be 
done as efficiently as is possible under the existing system. As I 
have pointed out in Chapter XIX, under public defense most 
of the functions of the probation officer will be taken over by the 
public defender and performed much more effectively by him. 

The probation system, therefore, has its utility as a substitute 
for something worse, and as preparing the way for something 
better. It is especially adapted for occasional criminals. It 
can frequently be used for young offenders. Suspension of 
sentence frequently is a good substitute for short periods of 
imprisonment. These penalties have little utility for young and 
occasional criminals, and are likely to harm them greatly by 
placing them under corrupting influences. So that it is usually 
better to release these offenders conditionally, especially if they 
can go out under the care of a probation officer. 

The utility of suspended sentences depends somewhat upon 
local conditions. It is not always beneficial for the criminal to 
be returned to the environment in which he has committed his 
crime. Furthermore, his release may have a bad effect upon 
others, who may commit crimes because they have seen him 
return unpunished. In some cases the plaintiff is incensed 
because the person who has injured him has not been punished, 
and may take the law into his own hands in order to secure his 
revenge. It has been suggested that the consent of the injured 
party should be obtained before a suspension of sentence can be 
granted. But this is too important a power to give to private 
individuals, and would furnish the opportunity for the manifes- 
tation of feelings of vengeance. 



404 CRIMINOLOGY 

There is, however, another feature of penal treatment which 
should be connected with the suspension of sentence, and which 
would counteract partially if not entirely these tendencies 
towards vengeance on the part of the plaintiff. The offender 
should be required to pay damages to the injured party as a 
condition of his release. If the damages are too large, he should 
pay in proportion to his ability. At present the plaintiff is 
forced to commence a civil suit for damages, which is usually a 
costly and uncertain proceeding. It is only just to the injured 
party that the offender should make restitution as far as he is 
able. Furthermore, this requirement acts as a salutary check 
upon the offender who is conditionally released, and impresses 
strongly upon his mind the injurious effect of his crime upon 
his victim. In this country the judges occasionally make 
restitution a condition of release, instructing the probation 
officer to make sure that the restitution is made, while they 
threaten the offender with the execution of the sentence if he 
fails to make restitution. In a later chapter will be discussed 
the principle of restitution as a fundamental principle of penal 
treatment. 

The Penal Treatment of the Young 

In no respect has the individualization of punishment been 
carried so far as in the penal treatment of young offenders. In 
all probability they have always been treated somewhat dif- 
ferently from adults. Their immaturity and ignorance have 
made it impossible to hold them as strictly accountable for 
their acts as adults. Furthermore, their dependence upon 
their parents and subjection to parental control have given 
them a peculiar legal status. Recently the idea has been gaining 
currency that, because his character and habits are not fixed, it is 
possible to reform the young criminal, and that, therefore, penal 
treatment should be adapted to this purpose rather than to 
punishment. 

The principal change in the legal status of the young offender 
has been with respect to his penal responsibility. Most of the 
systems of penal legislation now assume that all criminals under 
a specified age, usually sixteen, have committed their offenses 
without discernment, or at least admit proof of lack of discern- 
ment on account of youth. The penalties are then adjusted 



INDIVIDUALIZATION OF PUNISHMENT 405 

according to whether or not discernment has been proved, in 
either case the punishment being less severe than for adults. In 
some legislations an age still lower is designated below which no 
child can be presumed to be responsible. Any treatment given 
to these children is with no punitive object whatever. In the 
common law this age was seven. 

On account of the great importance of individualization in 
the treatment of young offenders, little weight should be given 
to penal responsibility, and the penal treatment should be pre- 
scribed as far as possible in accordance with the needs of each 
offender. This is all the more feasible in juvenile cases because 
of the difference in the public attitude towards the child and 
towards the adult criminal, and because of the greater utility 
of educational and reformatory agencies than intimidatory 
punishment in the penal treatment of children. This difference 
in the attitude of the public and the realization of the utility of 
these agencies have caused the changes which have already 
taken place in the procedure and penal treatment for children. 

The principal changes in the procedure for young offenders 
are exemplified in the juvenile courts. These courts have grown 
out of the probation system, which was usually intended at 
first solely for young offenders. Inasmuch as this system gave 
rise to some changes in the procedure, the juvenile cases were 
usually tried apart from adult cases. This in turn resulted in 
special legislation with regard to the procedure to be followed 
in juvenile cases. At present the juvenile courts exist in varying 
stages of development. In some places they have not yet 
passed beyond the initial stage of trying juvenile cases at a 
different hour from the adult cases, though in the same room 
and by the same judge. In other places the juvenile cases are 
heard in a different room or building, usually by judges specially 
designated for this purpose. The procedure also varies con- 
siderably. 

The juvenile cases are heard apart from the adult cases in 
order to save the children from being corrupted by older crim- 
inals, and also in order to emphasize the peculiar problems in- 
volved in juvenile cases. The publicity of the proceedings is 
usually diminished by holding the trials in a small courtroom, 
or in the judge's chambers. The purpose is in some cases not to 
alarm the child, in other cases not to stimulate his vanity by 



406 CRIMINOLOGY 

making him feel that he is in the public eye. Legal formalities 
are dispensed with as much as possible. A jury is not used ordi- 
narily, though the law frequently requires a jury trial if it is 
demanded by the defense. Lawyers are used but little. Fre- 
quently a public prosecutor is not present, and the form of a 
trial is dispensed with. In other words, a trial, strictly speaking, 
is not held. This is feasible because the crimes of children 
usually are petty, and are committed with more or less pub- 
licity. A child will usually admit an offense with a little ques- 
tioning. A trial can therefore be dispensed with, and the judge 
conducts an examination to ascertain the cause of the offense 
and the character and circumstances of the child. The judge is 
assisted in this work by the probation officer. 

The methods of treatment which may be used by the juvenile 
courts are varied. Whenever advisable, the child is left in the 
family under the supervision of the probation officer. But this 
is not always possible, sometimes because the child is incor- 
rigible and cannot be controlled by its parents, sometimes be- 
cause the family life is bad for the child on account of the vicious- 
ness of its parents, or for some other reason. In that case, the 
child is sent to the institution which is best adapted to give to 
it the education and discipline it needs. The length of deten- 
tion is usually indefinite, the maximum limit being the age of 
majority of the child, which in most jurisdictions is twenty-one 
years. 

These facts indicate how far the juvenile court movement 
has individualized the treatment of young offenders. In some 
of these cases the crime is almost entirely ignored. The judicial 
treatment of young offenders has in some places become an 
agency of the educational system. This is an excellent solution 
in some cases. But there is danger of forgetting the true sig- 
nificance of criminal acts. The criminal act frequently is the 
signal of congenital abnormality in the criminal. When such 
abnormality is the cause of crime in the child, society needs to 
be protected against it as much as when it manifests itself in 
an adult. Expert criminological knowledge should be used to 
diagnose the criminal tendencies of the child, in order that 
appropriate measures may be taken against these tendencies. 
Society must be guarded against anti-social tendencies which 
are as dangerous in the young as they are in adults, though not 



INDIVIDUALIZATION OF PUNISHMENT 407 

always so immediate in their dangerousness. And at times 
individualization has to be sacrificed in the interests of social 
defense against crime. 

The question may be raised as to whether the procedure in 
juvenile cases should be separated entirely from the procedure 
in other criminal cases. The chief significance of the juvenile 
court movement is that in breaking away from the old procedure 
it is preparing the way for a new procedure for adults as well 
as for children. The juvenile court movement should lead the 
way to a procedure based upon a scientific knowledge of the 
criminal and of the causes of crime, such as can be gained only 
through the science of criminology. When that time comes it 
may be discovered that the procedure for children and for 
adults need not differ greatly. 

The efficiency of a juvenile court depends largely upon the 
judge. In his hands is put a great deal of power, which he is 
free to use more or less arbitrarily. Consequently, he should 
be well acquainted with young offenders and their offenses, in 
order to be able to judge juvenile cases wisely. That is why 
it is frequently contended that the juvenile court judge should 
serve continuously in the juvenile court. When he comes to 
the juvenile cases from the trial of other cases, he is likely to 
bring with him a legal point of view which is out of place in a 
juvenile court. Furthermore, the authority of the judge over 
the children does not end with the decision of their cases, but 
it continues as long as they are on probation, or in the institu- 
tions from which they can be discharged only with his permis- 
sion. It is, therefore, important that he should be acquainted 
from its beginning with the history of each individual case 
coming under his authority. 

At the same time, it is doubtful if it would be advisable to 
develop an entirely specialized group of juvenile court judges. 
It is essential that a judge on the criminal bench should be ac- 
quainted w T ith the traits both of the young and the older crim- 
inals, in order to be able to judge properly the cases either of 
the young offenders or of the adult criminals. So that a certain 
amount of interchange between the juvenile courts and the 
other criminal courts will probably always be desirable. 1 

1 Detailed descriptions of the probation system and the juvenile courts 
are given in several books, among them being the following: — B. Flexner 



408 criminology 

Judicial and Administrative Individualization 

By means of rehabilitation the criminal record of an individual 
may be effaced. In France there are two kinds of rehabilita- 
tion, legal and judicial. In the case of certain crimes, when a 
specified time has elapsed after the expiration of the sentence, 
the record of the conviction is automatically effaced by the law 
without any action being necessary on the part of the criminal, 
provided there has been no recidivism. The time which must 
elapse depends upon the length of the sentence, and is usually 
several times as long as the sentence. In the case of other 
crimes, after being released from prison on conditional liberation, 
the convicted person may under certain circumstances secure 
judicial rehabilitation from a court. Inasmuch as a criminal 
record usually injures materially the future prospects of an ex- 
convict, it is of some assistance to secure the effacement of the 
official written record, to say the least, though this does not 
efface it from the memories of men. 

In this chapter I have been describing judicial individuali- 
zation in particular. This must be combined with adminis- 
trative individualization, in order to make a complete system 
of individualization. Such a system requires, on the one 
hand, a classification of the different types of criminals, and, 
on the other hand, a classification of penalties or methods of 
penal treatment. The types of criminals have been de- 
scribed in earlier chapters. Capital punishment, imprisonment, 
and the other penalties will be described in the following 
chapters. 

Judicial and administrative individualization should be con- 
nected and coordinated with each other by means of the re- 
vision of sentences. From time to time after a penalty has 
been imposed the sentence should be revized by the court with 
the aid and cooperation of the officials who administer the 
penalty. As the penal system becomes more and more scientific 
in its organization, it will become more and more feasible to 
discern accurately the character of the criminal, and to adjust 
the penalty accordingly. So that within the necessary limita- 

and R. N. Baldwin, Juvenile Courts and Probation, New York, 1914; Cecil 
Leeson, The Probation System, London, 19 14; Douglas Pepler, Justice and 
the Child, London, 191 5. 



INDIVIDUALIZATION OF PUNISHMENT 409 

tions upon individualization it will become possible for the 
court of revision to individualize wisely. 1 

1 It has been suggested that the court of revision should be called the 
"court of rehabilitation." (See R. B. Molineux, The Court of Rehabilitation, 
in Charities and the Commons, September 28, 1907.) 

At present the term "rehabilitation" is applied customarily to the offi- 
cial effacement of the record of a crime. This function will doubtless be 
performed by the revizing court. But inasmuch as most of its work will 
consist of revizing sentences and penalties, it is preferable to designate it 
as a "court of revision" rather than as a "court of rehabilitation." 



CHAPTER XXV 
THE DEATH PENALTY 

Arguments for and against capital punishment — The abolition of the death 
penalty — Humanitarian sentiment and the death penalty — The 
death penalty and political crime — Methods of capital punishment. 

The most drastic penalty is death. Capital punishment 
has been much used in the past. For example, as recently as 
1797 in England "the number of capital offences without bene- 
fit of clergy was 160, and it rose to 222, when the efforts of Sir 
S. Romilly for reform in this matter succeeded only so far as to 
have pocket-picking, which was capital above one shilling, taken 
out of the list of capital offences." x During the nineteenth 
century most of the capital offenses were abolished in all civil- 
ized countries, while the death penalty has been entirely abol- 
ished in a few countries. 2 

In modern times the wisdom and justice of the death penalty 
has been hotly debated, and an extensive controversial literature 
upon this subject has arisen. In fact, more attention has been 
given to this subject than it really deserves. A large part of 
this literature is of a mawkishly sentimental nature, especially 
the writings against the death penalty, and can therefore be 
disregarded. Some of this literature presents weighty argu- 
ments for and against capital punishment, and is therefore 
worthy of serious consideration. 

1 E. F. Du Cane, The Punishment and Prevention of Crime, London, 1885, 
p. 18. See also L. O. Pike, A History of Crime in England, Vol. II, London, 
1876, pp. 447-453- 

2 Capital punishment has been abolished in Brazil, Costa Rica, Holland, 
Italy, Norway, Portugal, Russia, Venezuela, in three Mexican States 
(Campeche, Pueblo, Yucatan), and in fifteen out of the twenty-two Swiss 
Cantons. 

The death penalty has been abolished in the United States in eleven 
States, namely, Arizona, Kansas, Maine, Michigan, Minnesota, North 
Dakota, Oregon, Rhode Island, South Dakota, Washington, Wisconsin. 
It has been abolished and restored in Colorado and Iowa. 



the death penalty 411 

Arguments for and Against Capital Punishment 

The two principal arguments in favor of capital punishment 
are the following: The first is that death is the most effective 
manner of removing permanently dangerous members of society. 
The second is that capital punishment has a greater deterrent 
influence upon criminals and potential criminals than any other 
penalty, because it is presumably the most fearful. Attempts 
have been made to prove by statistical methods the great de- 
terrent influence of punitive death. But it is obviously difficult 
to measure a phenomenon so subtle as the intimidatory effect 
of any form of punishment, and this is especially true of capital 
punishment. In every case complicating factors are present 
which vitiate in a measure any conclusion which is drawn from 
the available figures. 1 

It goes without saying that the same difficulties beset any 
attempt to disprove the deterrent influence of capital punish- 
ment. 2 All the more true is this of the attempts made by some 
opponents of capital punishment to prove that not only does 
capital punishment fail to deter from crime, but that it actually 
incites to crime. While this has unquestionably been proved in 
a few specific cases, it is impossible to prove it by statistical 
means for the effect of capital punishment in general. In all 
probability the death penalty has a powerful deterrent influence, 
perhaps more so than any other penalty. But on account of 
these difficulties in the way of the statistical method, I shall view 
capital punishment mainly from a standpoint somewhat broader 
than its immediate deterrent effect. 

The two principal arguments against capital punishment are 
the following: The first is that death is an irrevocable penalty. 

1 One of the best attempts to correlate increase of criminality with a 
diminishing use of capital punishment has been made by A. Lacassagne, 
Peine de mort el criminalite, Paris, 1908. But even this study cannot be 
regarded as conclusive. 

2 Many opponents of capital punishment have tried to disprove by sta- 
tistical methods the deterrent influence of this penalty. See, for example, 
K. d'Olivecrona, De la peine de morl, Paris, 1868; J. Oldfield, The Penally 
of Death or the Problem of Capital Punishment, London, 1901; F. Emory 
Lyon, Is Capital Punishment Justified?, in The South Mobilizing for Social 
Service, published by the Southern Sociological Congress, Nashville, 1913, 
pp. 193-203. Most of these attempts have been grossly illogical, and have 
been inspired by sentiment but not controlled by science. 



412 CRIMINOLOGY 

In .cases of judicial error it is impossible to do anything in the 
way of -amendment and indemnification after the penalty has 
been inflicted. The second is that this penalty violates human- 
itarian sentiment and regard for human life by deliberately 
destroying human life. 

What then are we to say with respect to these arguments for 
and against capital punishment? It is unnecessary to deny that 
punitive death has had social utility in the past. In the earlier 
days police protection was weak, and it was difficult to inflict 
long continued penalties such as imprisonment. It was, there- 
fore, inevitable that when criminals were apprehended, severe 
and summary penalties were inflicted upon them, both for the 
purpose of making them horrible examples, and in order to 
check them effectually in their criminal careers. These penalties 
became all the more harsh w T hen the anathema of religion and 
the vindictiveness of a despot or ruling class made the penal law 
more rigorous. 

How much deterrent influence these penalties exercized it is 
impossible for us to ascertain now. But it is probable that they 
served to a certain extent as a selective force to eliminate anti- 
social individuals. That they also served as a brutalizing factor 
is also probable, but this was not a matter of so much conse- 
quence under the ruder conditions and folkways which prevailed 
at that time. 

But social conditions have greatly changed in all of these 
respects during the past century or two. Police protection has 
become much more efficient, and criminals are now pursued 
more relentlessly and more effectively probably than at airy 
time in the past. It is now possible to choose from a greater 
variety of penalties, and to apply penalties more suitable to the 
specific crime and the individual criminal. These changes 
are already reflected in the disappearance of many of the severe 
and summary penalties, and in the general amelioration of penal 
treatment. 

The Abolition of the Death Penalty 

The question can, therefore, be pertinently raised on em- 
inently practical grounds as to whether or not the death penalty, 
already greatly restricted by the law in its scope, cannot be 
entirely dispensed with. In the first place, it is now within the 



THE DEATH PENALTY 413 

bounds of possible attainment to segregate permanently the 
offenders who have shown that they will always menace the 
safety and welfare of society. The great difficulty at present 
in the way of such permanent segregation is the misuse by 
executives of the pardoning power. It is frequently difficult for 
an executive to withstand the sentimental or political pressure 
which is brought to bear upon him to exercize clemency where 
there is no justification for such clemency. As soon as the par- 
doning power is abolished and the function of revizing sentences 
is placed in the hands of scientific boards in the manner de- 
scribed in the preceding chapter, this difficulty will disappear. 
It will then be possible to use scientific knowledge to determine 
which criminals should be permanently segregated, instead of 
leaving the decision of these important questions to arbitrary 
legal standards and to the fortuitous exercize of the pardoning 
power by executives. 

Furthermore, in all probability permanent segregation will 
in the long run have as great if not a greater deterrent influence 
than the death penalty, because few criminals can face the 
prospect of perpetual incarceration with greater equanimity 
than they do face the prospect of death. This will be all the 
more true because permanent segregation under the conditions 
described will be more certain than capital punishment today. 

At present the death penalty is very uncertain as a deterrent 
force, because it is frequently difficult to induce juries, judges, 
and executives to inflict it. This is due sometimes to an aversion 
against the deliberate destruction of human life, and sometimes 
to a realization of the fallibility of human justice, which may 
make an error which is irredeemable if the death penalty is 
inflicted. Statistics have been compiled which indicate that 
acquittals are much more frequent in homicide cases where the 
death penalty prevails than they are where capital punishment 
has been abolished. 1 This fact suggests that the death penalty 
tends to restrain courts from convicting in many cases where 
there is ample evidence for conviction. Still another factor 
which diminishes the certainty of the death penalty is the plea 
of insanity which is constantly being invoked with more or less 
success under our present system of procedure to avert this pen- 

1 Cf. Maynard Shipley, Does Capital Punishment Prevent Punishments?, 
in the American Law Review, Vol. 43, May-June, 1909, pp. 321-334. 



414 CRIMINOLOGY 

alty. These weaknesses in our system of penal repression are to a 
large extent responsible for the excessive number of homicides in 
this country. 1 They are responsible also for many of the 
lynchings. 

Another factor which will make life imprisonment more 
effective as a deterrent influence will be a more efficient ad- 
ministration of penal institutions and of the police, thus making 
escapes much more difficult. This will be all the more true 
because as time goes by the number of criminals in prison will 
doubtless decrease greatly. This will be due in part to a de- 
crease in the extent of crime, but mainly to the substitution of 
other forms of penal treatment in the place of incarceration 
within the walls of prisons. So that enforced residence in re- 
form schools, reformatories, and farm and industrial colonies, 
restitution, custodial surveillance, etc., will take the place to a 
large extent of imprisonment in the usual sense of that term. 
This will simplify greatly the problem of preventing escapes, 
because there will then remain in prison only the hopeless crim- 
inals who are comparatively few in number, and who have been 
condemned to perpetual confinement. At present the problem 
of preventing escapes is greatly complicated by the presence 
in prisons of a vast number of criminals of many diverse types 
requiring different kinds of treatment. The importance of giving 
many of them a certain measure of freedom in the prison life 
makes it all the more difficult to keep the few incorrigible ones 
in strict confinement. 

The death penalty is the most arbitrary of all punishments, 
and is therefore a serious obstacle in the way of individualiza- 
tion. This is clearly illustrated in the case of the crime to which 
capital punishment is now almost exclusively restricted, namely, 
murder. Many murders are committed in fits of passion by 
persons who are otherwise non-criminal. Some of them are 
committed by paranoiacs and other lunatics who are laboring 
under insane delusions. Some of these insane murderers are 
possessed by homicidal manias which are frequently due to 
sadistic tendencies. Some murders are committed by robbers, 
burglars, and other professional criminals whose primary object 
is not homicidal, but who commit murder in order to accom- 
plish their primary criminal purpose, which is usually to steal. 
1 See Chapter x£l. 



THE DEATH PENALTY 4 1 5 

It is obviously stupid to inflict the same penalty on all of 
these different types of murderers. It is true that there has 
always been a certain amount of individualization in practise, 
because juries, judges, and executives have frequently dis- 
cerned the differences between these different types, and have 
varied the penal treatment accordingly. For example, mur- 
derers by passion have frequently escaped from the courts 
without any punishment or with mild penalties. But, on the 
other hand, many insane or feebleminded murderers have 
been sent to the scaffold because their mental infirmity has 
not been discovered, while the plea of insanity has sometimes 
been successfully used as a cloak for the protection of the pro- 
fessional criminal who had committed murder. The abolition 
of the arbitrary death penalty would make more feasible the 
individualization of the penal treatment of murderers. 

The abolition of capital punishment would prevent the irre- 
vocability of punishment in every case of judicial error. Fur- 
thermore, it is obviously feasible to devize other penalties which 
would be as effective in preventing incorrigible criminals from 
preying upon society, and which would probably be as deterrent 
in their effect upon other criminals and potential criminals. 
Perpetual confinement is, of course, the principal one of these 
penalties. But this could be inflicted in different ways. If 
the criminal is sane and not feebleminded, incarceration in a 
prison for life would usually be the most appropriate penalty. 
But if the criminal is feebleminded or hopelessly insane, he 
should be confined for life in an asylum for the feebleminded 
criminals or for the criminal insane. 

It has been suggested that castration might be used as a 
supplementary penalty in these cases. This operation has such 
an effect upon the character as to tend to check the individual 
from committing acts of violence, though it seems to do injury 
to the character in other ways by stimulating lying, deceitful- 
ness, cowardice, etc. Consequently, castration might make 
these criminals more amenable to prison discipline, while if by 
any chance they returned to society it would restrain them from 
homicide and similar acts of violence, and would prevent them 
from procreating. x 

1 Cf. Servier, La peine de mort remplacee par la castration, in the Arch, 
d'anth. crim. } Vol. XVI, March, 1901, pp. 1 29-141. 



41 6 CRIMINOLOGY 

There still remains the objection to the abolition of the death 
penalty that it would entail a considerable expense upon so- 
ciety to maintain in existence the incorrigible criminals for the 
duration of their natural lives. This expense can be partly 
if not entirely removed by forcing these criminals to engage 
in productive labor within the prisons. But even if this expense 
must be incurred, there are other gains from the abolition of 
the death penalty which will more than compensate society for 
this expense. 

Humanitarian Sentiment and the Death Penalty 

I have already indicated that mawkish sentimentality with 
respect to the death penalty should be repudiated. If it were 
indeed necessary to social welfare to put to death the worst of 
the criminals, there should be no opposition to it on sentimental 
grounds. There would be no excuse whatsoever for wasting any 
sympathy upon the criminals themselves. 1 But there is ample 

"En resume, void ce que nous avons propose et cherche a, demon trer: il 
est a, desirer que la peine de mort, procede barbare, soit abolie; elle serait 
remplacee, sans desavantage, par la peine de l'eunuquage, laquelle, bien 
que ne supprimant pas le criminel, le met dans un etat d'inferiorite telle 
qu'il ne demeure plus un etre nuisible et dangereux, et, surtout, previent 
la venue au monde de creatures tarees par un vice originel, operant ainsi 
une selection eminennent favorable a F amelioration de la race." (P. 140.) 

1 At the time of the present writing (August, 191 7) a notorious homicide 
in New York City (the De Saulles case) illustrates the vicious, mawkish 
sympathy frequently displayed by a considerable portion of the public in be- 
half of murderers. A woman shot her former husband to death, apparently 
with deliberation and in cold blood. Immediately she began issuing state- 
ments which blackened the character of her victim, who could no longer 
defend himself because she had killed him. The sensational newspapers 
aided her by publishing her defamatory statements and many facts and 
alleged facts about her which were calculated to arouse sympathy in her 
behalf. 

Unfortunately, in accordance with our law it is possible for the defense 
to introduce into the court proceedings these slanderous statements in con- 
nection with a plea of insanity, while the reputation of the victim of the 
murderer cannot be defended. As a New York newspaper has said with 
reference to this case, "this opens the door to the loosest scandal and even 
to slander, and by the rulings of our courts the dead man's friends cannot 
have the privilege of a defendant in any other case, cannot introduce evi- 
dence in his behalf. However it may go with his slayer, the dead man is 
always convicted, sentenced and punished, though it is upon those who loved 
him that the real punishment falls." (New York Times, August 10, 191 7.) 



THE DEATH PENALTY 417 

reason to believe that capital punishment should be abolished 
in deference to humanitarian sentiment which cannot be ignored. 

The most salient feature of the modern humanitarian move- 
ment is the manner in which it has enhanced the value of human 
life. This has been manifested in numerous attempts to cure 
the sick, to prevent infant mortality, to reduce the mortality 
from warfare, to prevent wars, etc. 1 It is inevitable, therefore, 
that the deliberate taking away of human life by a social agency 
must shock this humanitarian sentiment regarding the supreme 
value of human life. Furthermore, deliberate homicide, how- 
ever legal in form and moral in intent it may be, must inevitably 
have at least a slight brutalizing effect upon society at large. 
So that, quite apart from its effect upon crime, there is ample 
justification for abolishing capital punishment because of its 
effect upon society in general, most of whose members are in 
no danger whatever of committing the crimes punished by 
the death penalty. In fact, it is probable that, even if it were 
desirable to retain the death penalty for the prevention and 
suppression of crime, it would still be justifiable to abolish capi- 
tal punishment on account of the above considerations. 

In this connection we may compare punitive death with war. 
There is no occasion to defend warfare, which is one of the great- 
est of social evils, far greater than the death penalty could ever 
be. Furthermore, it is needless to add that the mortality from 
warfare is vastly greater than the mortality from capital punish- 
ment, and that the death penalty is inflicted upon persons who 
can be dispensed with by society far more readily than most of 
those who are lost in war. It is nevertheless true that much of 
the killing of human beings in wartime is committed under the 
influence of passion which frequently reaches a state of moral 
exaltation. The death penalty, on the contrary, is invariably 
the most deliberate and cold-blooded form of legalized homicide. 
So that the brutalizing effect of capital punishment probably 
is greater in proportion to the number of lives destroyed than is 
the brutalizing effect of warfare. 

Nor is it possible to escape the conviction that the death 

1 See my Poverty and Social Progress, New York, 1916, Chap. XVII, en- 
titled "The Modern Humanitarian Movement." 

See also my article entitled The Rise of Modern Humanitarianism, in the 
Am. Jour, of Sociology, Vol. XXI, No. 3, November, 1915, pp. 345-359. 



418 CRIMINOLOGY 

penalty is the most vindictive form of punishment, and is all 
the more repellent as such because it is deliberate and cold- 
blooded. This is clearly illustrated in the case of murder, which 
is the crime to which it now is almost exclusively restricted. 
It is obvious that this is a survival of the lex talionis, the taking 
of a life for a life. Like most of the poetic penalties, it is prob- 
ably not the most efficacious method of checking and preventing 
the crime to which it is applied. 

It may be said that in many cases the death penalty is not 
so severe as life imprisonment would be. But this is not at 
present recognized in inflicting the penalty. If it were, the 
culprit would be given the choice between death and life impris- 
onment. So far as I know, this choice is nowhere accorded to 
the condemned person by the law, though the death sentence is 
frequently commuted to life imprisonment by the executive 
power. 

The Death Penalty and Political Crime 

So far I have been discussing capital punishment for common 
crimes alone. In the past death has been the usual penalty 
for treason, and it still is so at law for some kinds of treason in 
most if not all countries, though rarely inflicted in many coun- 
tries. In a few countries, such as Russia, it is inflicted for polit- 
ical offenses but not for common crimes. 1 It is hardly neces- 
sary to state that there can be no excuse for the supreme pen- 
alty for political offenses in time of peace. In such cases it can 
serve only as a bulwark for tyranny, and as an obstacle to polit- 
ical progress. No form of government which needs to bolster 
itself up with the aid of the death penalty is worthy of survival. 
A government which rests upon the will of the people and which 
is responsive to the wishes of its citizens can well dispense with 
this penalty. 2 

1 The above statement was written previous to the Revolution of 1917, 
which abolished the death penalty for political offenses in Russia. 

2 Viaud has given an exhaustive and convincing exposition of the argu- 
ments against the death penalty for political offenses. (J. Viaud, La peine 
de mort en matter e politique, Paris, 1902.) He points out how unjust and 
stupid it is for any democratic government to make use of this penalty. 
"Pour retablir chez nous la peine de mort en matiere politique, un gouverne- 
ment ne devrait pas seulement faire parade du mepris le plus absolu de 



THE DEATH PENALTY 4 10. 

In time of war the situation changes somewhat. Taking war 
as it is, and must always be, it is inevitable that death should 
be inflicted upon spies and others guilty of treason. It is hardly 
possible to modify martial and military law in this respect. 
The only way of dispensing with the death penalty in these 
cases is to prevent war itself. 

Methods of Capital Punishment 

These humanitarian and political considerations, as well as 
those already adduced, indicate that capital punishment should 
be abolished. But so long as it continues to exist, it should be 
shorn as far as possible of its obnoxious and injurious features. 
This is attempted in all civilized countries. 

In the past it was customary to inflict the death penalty in 
public, probably usually for exemplary reasons. But it came to 
be realized gradually that publicity did not increase its deter- 
rent influence. In fact, it only tended to give to it a value in the 
eyes of vain and mentally ill-balanced persons who craved this 
publicity. Furthermore, publicity increased greatly its bru- 
talizing effect upon society at large. For these reasons public 
executions have become rare in civilized countries. 

It is also attempted in the civilized world to make the death 
penalty painless, and to avoid unnecessary mutilation of the 
body. In order that an execution may be devoid of pain, it is 
essential that death, or at least loss of consciousness, should 
come at once. In some methods of execution it is difficult to 
determine just when consciousness ceases. Hanging is used in 
many states in this country, in England, and elsewhere. When 
properly carried out it breaks the neck at once, so that in all 
probability no pain is experienced. Electrocuting is used in a 
few states in this country. It is a clean way of causing death, 
and does not mutilate the body. But there is still a little un- 
certainty as to whether or not there are a few seconds of excruci- 
ating pain before consciousness is lost. 1 Shooting is used in a 

toute equite, il faudrait le supposer aveugle jusqu'a la folie du suicide 
moral." (P. 360.) 

1 Spitzka expresses the opinion that electrocution is always painless, but 
that hanging frequently causes pain. (E. A. Spitzka, Observations Regard- 
ing the Infliction of the Death Penalty by Electricity, in the Proc. of the Am. 
Philosophical Soc, Vol. XL VII, No. 188, Jan.-Apr., 1908, pp. 39-50.) 



420 CRIMINOLOGY 

few countries, as in Austria, and is an effective method with 
little mutilation when properly carried out. Beheading by means 
of the guillotine is used in France. This is a sure method of 
bringing about instantaneous death, but it seriously mutilates 
the body. 

I do not know to what extent poisoning is now used, but it 
has been a popular method in the past. It is a clean and effective 
method, and is painless if properly applied. It is possible that 
a choice of several methods should be offered to the condemned 
person. This is the case in Nevada, where the choice is between 
shooting and hanging. 1 

In the last place, I should like to emphasize again the impor- 
tance of reforming criminal procedure so that the plea of insanity 
will be properly used and feeblemindedness will be recognized. 
By so doing the murderers who are incapable of understanding 
the nature of their acts will be saved from the death penalty. 
In this manner the injustice of executing morally irresponsible 
persons will be prevented. 

1 Criminal Practice, Section 431. "The punishment of death shall be in- 
flicted by hanging the defendant by the neck until he is dead, or by shoot- 
ing him, at his election. If the defendant refuse or neglect to make the 
election, the court at the time of rendering the sentence must declare the 
mode of execution and enter the same as a part of its judgment." (Revised 
Laws of Nevada, Carson City, 191 2.) 



CHAPTER XXVI 
THE PRISON SYSTEM 

The types of prisons — The cellular prison — Development of the per- 
sonality of the prisoner — Prison administrators — Solitary and social 
prison life — Classification of prisoners — Prison labor: prison mainte- 
nance; wage labor for prisoners — Evils of contract labor — Educa- 
tional, religious, and recreational facilities — Prison discipline: causes 
of misconduct in prison; malingering; prison penalties; the marking 
system — Self government in prisons — Sex problems in prisons — 
The prison psychosis — The prison type. 

The characteristic feature of the prison system in the nine- 
teenth century has been the cell. A few cellular prisons were 
built previous to the nineteenth century. But cellular confine- 
ment was most widely used during the nineteenth century. It 
was in a measure due to a reaction against the type of imprison- 
ment prevalent during the eighteenth century. At that time 
prisoners were mingled together with little or no attempt at 
segregation or classification. The physical and moral evils 
arising from this indiscriminate and heterogeneous method of 
imprisonment were disclosed by prison reformers. It was en- 
deavored to prevent these evils by segregating the prisoners 
as completely as possible in individual cells. It was thought that 
by separating the criminal from evil companions and by placing 
him in solitude he would be encouraged to repent from his mis- 
deeds and to acquire a contrite heart. This type of imprison- 
ment came to be known in this country as the Pennsylvania 
system, because it was introduced at an early date into the East- 
ern State Penitentiary of Pennsylvania located at Philadelphia. 

At the same time the idea that prisoners should be made to 
work was becoming prevalent. It was discovered that it was 
bad for the prisoners themselves to remain idle, while it was bad 
for society that they should be unproductive during the period 
of incarceration. Consequently, it was attempted to introduce 
systems of prison labor. But this soon caused difficulties with 
respect to the solitary method of confinement. While there were 



422 CRIMINOLOGY 

a few kinds of labor which could be carried on in the cells, most 
of the forms of industry suitable for the prison had to be carried 
on in large workshops. Consequently, there arose a compromize 
between the solitary and the social system of imprisonment. 
The prisoners were marched into the workshops to work during 
the day under strict supervision, but were kept in solitude the 
rest of the time. This system has come to be known in this 
country as the Auburn system from the New York State Prison 
at Auburn. It is the prevailing prison system in this country 
at the present time. 

There are several kinds of penal institutions which are prisons 
or which partake of the nature of prisons. Places of temporary 
detention, such as police stations, are prisons in the sense that 
persons are forcibly detained in them. But they are used prin- 
cipally for the detention of persons who are not necessarily 
criminals, such as defendants in criminal trials, witnesses, etc. 
So that they are not prisons in the full meaning of the 
term. 

Jails, such as city and county jails, are local prisons, to which 
criminals are usually committed only for short sentences. A 
workhouse is a type of jail in which work is required of the in- 
mates. Agricultural penal colonies are farms upon which crim- 
inals are forced to work, and where they are kept under a certain 
measure of restraint. But there is more freedom in one of these 
penal farm colonies than there is in an ordinary prison. 

Industrial reform schools are partially penal institutions to 
which criminal and wayward children are committed. Here 
they are kept under some restraint. But it is usually attempted 
to make these institutions more like trade schools than prisons. 
The industrial reformatories are prisons for young criminals who 
furnish some hope of reform. But they are educational and 
industrial institutions as well as prisons. 

Penal institutions have been established for pathological 
types of criminals. Among these are a few criminal inebriate 
asylums, and a number of criminal insane asylums. 

The state and national penitentiaries are prisons to which 
criminals are ordinarily committed for long terms. 

I shall now describe the problems of prison construction and 
administration which are involved to a greater or less degree in 
the establishment and management of every kind of penal 



THE PRISON SYSTEM 423 

institution. I shall then describe more specifically the differ- 
ences between the various types of prisons. 

The Cellular Prison 

There are two principal types of cell building. One type has 
corridors just inside the outer walls of the building. In the other 
type a corridor runs through the center of the building. 

The first type is the most common in this country. Rows of 
cells are set back to back in the center of the building. The cells 
receive light and air from the corridors and not directly from the 
outside. The following arguments are used in favor of this 
type of cell building. They are said to be cheaper to build, 
partly because the plumbing arrangements are simpler. They 
are safer because the prisoners can be watched by the guards 
from the front of the cells, and also from the rear through peep- 
holes which look into the cells from a narrow passage way 
which runs between the two rows of cells. The cells are more 
private in so far as the prisoners cannot look into each other's 
cells. But, on the other hand, the cell doors must necessarily 
be made of bars in order to admit light and air from the corri- 
dors. Consequently, there is no privacy from persons passing 
through the corridors. 

In the other type of cell building the cells are just inside the 
outer walls of the building. They are lighter and airier than in 
the first type of cell building. Furthermore, through the cell 
windows the inmates can secure glimpses of the outer world. 
The cells can be made private by means of solid doors with 
peep-holes through which the guards can watch the inmates. 
If the cell windows are protected with strong bars and are 
frequently inspected, there is little danger of escape. 

The cell building with the inside corridor seems on the whole 
to be most desirable for the welfare of the inmates. The cells 
should be constructed of concrete or other material which can 
be kept clean and free from disease germs. Each cell should 
be large enough to provide plenty of cubic feet of air for at 
least one inmate. Each cell should contain a comfortable bed, 
a chair, a good light, a toilet, and running water. As far as 
possible there should be only one inmate in each cell. 

The cottage system in the place' of the cell blocks is now being 



424 CRIMINOLOGY 

advocated by some prison reformers. This system is more 
homelike and therefore pleasanter in some ways for the prison- 
ers. But the cell blocks are usually more economical, especially 
where a large number of inmates must be housed. The cell 
system is not seriously objectionable if the inmates are not 
forced to spend much of their time in their cells. If the cells are 
sanitary and comfortable, they serve very well as small bed- 
rooms. They may also be used in the evening for a short period 
of quiet reading and meditation before bedtime. The modern 
prison cell is no worse than a monastic cell, or the hall bedroom 
in which many a poor person has to live. 

It is, however, highly desirable that the huge cell blocks con- 
taining a thousand or more cells should no longer be built. 
Instead there should be constructed small cell blocks containing 
from fifty to one hundred and fifty or two hundred cells. These 
small cell blocks facilitate the classification of the. prisoners into 
homogeneous groups. By permitting association in the corridors 
each building can become in a measure a social unit. The 
buildings can be graded according to their desirability as places 
of residence, and the privilege of living in the more desirable 
buildings can be used as a valuable incentive to good behavior. 
Furthermore, the small cell buildings render it more feasible to 
make changes in the administration of prisons. Inasmuch as 
prison administration will doubtless modify greatly during the 
next few decades, this is an important consideration. In course 
of time the small cell blocks may develop into the cottage sys- 
tem. 1 

Solitary and Social Prison Life 

The ideal of prison administration should be to provide, as 
far as prison conditions will permit, a normal social life for the 
prisoners. Inasmuch as most of the prisoners will return even- 
tually to life in society, an unsocial or anti-social life in prison 
is not likely to fit them for life in society. 

In a prison the personality of the prisoner should be devel- 
oped with a view to making him a useful member of society. 

1 The prison cell and cellular confinement have been discussed in num- 
erous penological works. See, for example C. R. Henderson, The Cell: A 
problem of prison science, in the Jour. Crim. Law, Vol. II, No. i, May, 191 1, 
pp. 56-67; 71st An. Rep. Prison Ass'n of N. Y. [1915}, Albany, 1916. 



THE PRISON SYSTEM 425 

The suppression of individuality by unnecessary uniformity 
should not be tolerated. While discipline is an essential feature 
of prison life, an artificial uniformity is not usually the best form 
of discipline. Shackles, the lockstep, a distinctive prison uniform 
such as stripes, the compulsory cropping of the hair and shave, 
etc., should be abolished. Some of these disciplinary measures, 
such as the lockstep, hamper the ex-convict in his after-life in 
society at large. In the place of these harmful forms of discipline 
should be substituted gymnasium and military drill, enforced 
cleanliness and neatness, regular habits of eating and sleeping, 
temperance, and habits of industry. 

In order that the prison shall be administered efficiently the 
superintendents, instructors, and guards should be trained for 
their important duties, and should be adequately remunerated. 
The fee system should be abolished. Under this system those 
who profit from the fees are mainly interested in keeping as 
many as possible in prison, and are not interested in preparing 
the inmates to leave prison. 

As I have already stated, there have been great differences 
in prisons as to the degree of association permitted among the 
inmates. In many of the European prisons and in some of the 
American prisons the attempt has been made to isolate the 
prisoners entirely from each other. In these prisons practically 
all of the time of the prisoner is spent in his own cell, and he is 
not permitted even to see his fellow-prisoners. The only social 
life allowed him is a very small amount of social intercourse with 
the prison officials and visitors. 

It has been alleged in behalf of solitary confinement that the 
prolonged meditation caused by it induces a state of remorse, 
contrition, and repentance for the evil committed by the pris- 
oner. Consequently, he resolves to follow a virtuous life after 
leaving prison. Furthermore, it saves the prisoner from asso- 
ciation with criminals who are worse than himself, and who will 
consequently contaminate and corrupt him beyond the point 
he has already reached. By shielding his features from his 
fellow-inmates he will be saved from recognition by other 
criminals after he leaves prison. 

It is, however, almost certain that remorse and repentance 
are not the usual results of solitary confinement. This may 
happen to a few of the criminals by passion and of the occasional 



426 CRIMINOLOGY 

criminals. But it is doubtful if it can ever happen to the feeble- 
minded and psychopathic criminals, and rarely to the profes- 
sional criminals. On the contrary, solitary confinement is 
much more likely to lead to brooding over fancied wrongs and 
the hardness of fate. This brooding is almost certain to inten- 
sify the hostility and bitterness of the criminal towards society, 
and thus to make him much more dangerous to society after 
he leaves prison. If the solitary confinement is prolonged for 
many years, it is almost certain to give rise to a prison psychosis 
which is likely to develop into insanity. This fact has been 
recognized even by many of those who advocate solitary con- 
finement, and has led them to consider it desirable to place a 
limit to the length of solitary confinement, as, for example, 
ten or fifteen years. 

The inmates can be saved from corruption within the prison 
to a large extent if they are properly classified. If the inex- 
perienced criminals are not permitted to mingle with the hard- 
ened criminals, the danger from this source will be reduced to a 
minimum. But even granting that at least a small amount of 
corruption will result from association within the prison, soli- 
tary confinement for all the prisoners is too great a price to pay 
for the prevention of this corruption. The prisoners will gain 
more in the long run from a classified system of association. 

It is obvious that the ideal of the normal social life, as far as 
prison conditions will permit, mentioned above, cannot possibly 
be attained unless a large measure of association is permitted 
within the prison. This ideal is not attained when the prisoners 
merely eat together in the same dining room, and work together 
in the workshops, but are not permitted to talk together or 
have any lawful intercourse, as is the case in many prisons. It 
goes without saying that speech is an essential feature of normal 
social life. The inmates should, as a general rule, be permitted 
to converse during their meals, and perhaps sometimes at their 
work. Furthermore, they should be given periods of recreation 
during which they can mingle and converse freely with the 
members of the class in the prison to which they have been as- 
signed. By this means they can maintain relations of friend- 
ship if not of intimacy with some of their fellow-inmates during 
their incarceration. There are few if any human beings who 
can fail to become more unsocial, and usually more anti-social, 



THE PRISON SYSTEM 427 

if they are cut off from such human relationships for any great 
length of time. 

Prison Labor 

One of the most serious problems of prison administration is 
convict labor. In many prisons in the past labor was not pro- 
vided for the inmates, except possibly when unremunerative and 
unproductive labor, such as the treadmill, was imposed as a 
form of discipline. Idleness in prison is even more harmful 
than it is elsewhere, and frequently becomes a burden to the 
inmates themselves. So that penal servitude has been intro- 
duced into most of the prisons to which criminals are sentenced 
for long terms, and some of the short term prisons as well. But 
there are many defects in the system of prison labor which must 
be corrected. 

It is essential, first of all, to state clearly and precisely the 
purposes of prison labor. In the first place, it should pay in large 
part if not entirely the cost of maintaining the prisons. In the 
second place, it should be organized and administered in such a 
fashion as to furnish the prisoners an industrial training which 
will aid in making them useful and productive members of 
society after they leave prison. In the third place, it should 
contribute as far as possible towards the self-support of the 
prisoners. 

When the prisoners have not been forced to work, the whole 
expense of maintaining the prisons has fallen upon the public. 
Most if not all of this expense can be obviated by using the 
labor supply available in the prisons. In the first place, the 
inmates can do most of the work of caring for the prison itself. 
Sometimes they are able even to take part in constructing the 
prison. The remainder of the labor supply can be used to pro- 
duce goods which have value outside of the prison. These 
goods can be profitably disposed of in two ways. They can 
be put on the market and sold. There has been a good deal of 
objection to this method because there is a tendency for the 
government to undersell the same goods produced by private 
manufacturers, and thus to give rise to unfair competition 
against the manufacturers and the free labor outside of the 
prisons. Or these goods can be made to be used by the other 
branches and departments of the government. This is the so- 



428 CRIMINOLOGY 

called "state use" system which is being more and more widely 
adopted. By this method the prison system can help to support 
the government without giving rise to unfair competition in 
the open market. 

The prison industries should be somewhat varied in order 
to utilize the different kinds of skill possessed by the inmates, 
and also in order to furnish several forms of industrial training 
for the inmates who are ignorant of a trade. They should be 
supervized by persons who are competent to instruct, so that 
the prison labor system will be educational as well as financially 
profitable. As far as possible there should be included the dif- 
ferent kinds of trades best suited to the types of physical and 
mental ability represented in the population of the prison. 
There should be out-of-door work, such as farming and con- 
struction work, for the physically strong and robust, and indoor 
work, such as tailoring, cabinet-making, etc., for those who are 
better fitted for indoor work. Furthermore, the kinds of work 
provided in each institution should be determined largely ac- 
cording to the types of criminals for which the prison is special- 
ized. Thus the trades in a reformatory for young offenders 
would differ somewhat from those in a prison for adults, the 
industries in a penal institution for the feebleminded would 
differ somewhat from those in a penal institution for the insane. 

A careful record should be kept of the cost of maintenance of 
each inmate of a prison. Then the inmate should be encouraged 
to become self-supporting within the prison as far as possible 
by producing enough to cover the cost of his maintenance. 
The interest of the prisoner in his work can usually be aroused 
by offering to pay him all or at least a part of what he produces 
over and above what it costs to support him. It may even be 
well to itemize the account of expenditure for his support, and 
require him to pay with the fruits of his own labor for his food, 
clothing, lodging, etc., except when disabled from doing so, in 
which case the state would support him as it cares for other 
dependents. By this means the interest of the prisoner is 
aroused in the problem of his own maintenance, and his self 
respect is encouraged by the feeling that he is not financially 
dependent upon others and is not being pauperized. In most 
cases he will endeavor to make more than it costs to maintain 
him in the prison. He may be permitted to spend a limited 



THE PRISON SYSTEM 429 

portion of the surplus of his wages over his cost of maintenance 
while in prison. But if he has a family, it should be devoted 
to the support of his family. Otherwise most of it should be 
saved up to be used by him after he leaves prison. 

A few attempts to introduce a system of wage labor into the 
prison system have been made. 1 But in most places prison 
labor is still regarded merely as a form of penal servitude. The 
state doubtless has the right to impose labor as a form of punish- 
ment, and such labor has a certain amount of punitive value. 
This labor would, however, have much greater psychological 
and moral value if it was directed at least in part towards re- 
paying, whenever possible, the victim of the crime for the injury 
he has sustained. I shall describe punitive reparation in the 
following chapter, and shall then show that the principle of rep- 
aration should be combined with the principle of compensation 
for the prisoner. 

Evils of Contract Labor 

But while penal servitude to the state is justifiable, there can 
be no justification for penal servitude to individuals. It has 
nevertheless been customary for the state to sell the labor of 
convicts to private employers. During' the Colonial days many 
convicts were sent here from England, and their labor was sold 
to the colonists for the period of their sentences. It is still pos- 
sible in several of the Southern states to sell the labor of the 
convicts outside of the prisons. 2 This has resulted in the brutal 
"peonage" system in these states in which the convicts have 
been almost literally sold body and soul to the purchasers of 
their labor. 

It is obviously dangerous to put helpless convicts who have 
little or no legal redress into the hands of private employers. 
In the Southern peonage camps the convicts are fed and housed 

1 Some of these attempts are described by W. N. Gemmill, Employment 
and Compensation of Prisoners, in the Jour. Crim. Law, Vol. VI, No. 4, 
November, 1915, pp. 507-518. 

2 According to Whitin in 1913, prisoners could be leased for work outside 
of the prisons in Alabama, Arkansas, Florida, Louisiana, North Carolina, 
South Carolina, and Tennessee. (E. S. Whitin, The Caged Man, in the 
Proceedings of the Academy of Political Science in the City of New York, 
Vol. Ill, No. 4, July, 1913, pp. 24-25.) 



43° CRIMINOLOGY 

by the employers, and are almost entirely in the power of the 
employers during the period they are leased to them. This 
situation is a strong temptation to the selfishness and cupidity 
of the employers. They are very likely to spend as little as pos- 
sible in caring for the convict laborers, and to procure as much 
labor as possible out of them. Furthermore, the desire to secure 
cheap labor will impel them to use every possible means, some- 
times illegal as well as legal, to induce the officers of the law 
(sheriffs, judges, etc.) to arrest and convict numerous vagrants 
and other defenseless persons for alleged offenses. In this 
fashion the contractors recruit their chain gangs for road work, 
the lumber camps, etc. 

But there are serious objections against leasing convict labor 
within the prisons as well. It is true that under these condi- 
tions the prisoners are not at the mercy of the contractors to 
the same extent as in the peonage camps. But it is impossible 
under a contract labor system to attain the objects of prison 
labor which have been described. It is impossible to interest 
the prisoners in their work when they know that they are being 
exploited by private contractors, whereas this interest may be 
aroused when they are working solely for the state and for them- 
selves. It is impossible to train the prisoners as effectively under 
contract labor as under the state system. It is difficult to devize 
a satisfactory system of compensation for the prisoners under 
contract labor. The supervision over the workshops by the 
contractors is likely to be a disturbing factor in the prison ad- 
ministration, and to interfere with a harmonious organization of 
the prison life in accordance with scientific principles. 

Furthermore, contract labor has been a prolific cause of 
political corruption in this country. Prison labor is a cheap and 
therefore highly profitable form of labor for the employers. 
Consequently, the granting of the prison contracts has resulted 
in much bribery of the government officials and of the politicians. 
These contracts have constituted an important part of the 
"graft" of our political system. 1 

Contract labor has also given rise to much friction with the 
labor organizations. The products of the prison contract labor 
have usually been put on the market at reduced prices, and have 

1 For a description of contract labor in this country see, E. S. Whitin, 
Penal Servitude, New York, 191 2. 



THE PRISON SYSTEM 43 1 

competed with the products of the free labor. Consequently, 
free labor has been put at an unfair disadvantage with the cheap 
prison labor. Consequently, the labor unions have naturally 
and justifiably opposed contract labor, and have constituted a 
powerful factor for the state use system. 

In spite of these serious objections contract labor still exists 
in many states, and is recognized and permitted by their con- 
stitutions and laws. l And yet there is some reason for believing 
that contract labor is prohibited by the Constitution of the 
United States. The Thirteenth Amendment, ratified by the 
states in 1865, reads as follows: " Neither slavery nor involuntary 
servitude, except as a punishment for crime whereof the party 
shall have been duly convicted, shall exist within the United 
States, or any place subject to their jurisdiction." The Su- 
preme Court of the United States has defined the meaning of 
the word slavery as it is used in this amendment as follows: 
"Slavery implies involuntary servitude — a state of bondage; 
the ownership of mankind as a chattel, or at least the control 
of the labor and services of one man for the benefit of another, 
and the absence of a legal right to the disposal of his own person, 
property and services." (Plessy v. Ferguson, 163 U. S. 537.) 

It is evident that the Constitution expressly permits penal 
servitude as a form of punishment. But it is also evident that, 
according to the opinion of the Supreme Court which has been 
cited, contract labor is expressly prohibited, because it involves 
"the control of the labor and services of one man for the benefit 
of another." This constitutional question was tested recently 
in a case which was brought before the Supreme Court of the 
State of Rhode Island. Unfortunately the court decided that 
contract labor is constitutional, but without giving any reason 
for its decision. 2 It is to be hoped that this question will be 

1 According to Whitin, in 19 13 the state laws permitted convict contract 
labor in the following states: Alabama, Arkansas, Colorado, Connecticut, 
Florida, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, 
Maryland, Massachusetts, Minnesota, Nebraska, Nevada, New Hamp- 
shire, North Carolina, Oregon, Rhode Island, South Carolina, South 
Dakota, Tennessee, Vermont, Virginia, West Virginia, Wisconsin. (The 
Caged Man, pp. 24-8.) 

2 William Anderson v. Crescent Garment Co. This case was instituted a 
few years ago by the National Committee on Prisons and Prison Labor. 
The State of Rhode Island had hired the labor of some of its prisoners to 



432 CRIMINOLOGY 

decided before long by the Supreme Court of the United States. 
If the Federal Supreme Court fails to declare contract labor un- 
constitutional, it should be prohibited by state and federal 
legislation. 

Educational, Religious, and Recreational Facilities 

In all prisons where the inmates are not incorrigible there 
should be educational facilities for those who need them. This 
is especially important in the reformatories for the young delin- 
quents. But it is important also for the older criminals whose 
education is very deficient. There should also be a library in 
every prison, and good current periodical literature should be 
circulated among the prisoners. These educational measures 
will materially aid some of the offenders, and especially the 
younger ones, to make their way in the world without falling 
into crime again after leaving prison, while they are not likely 
to help the professional criminals to become more efficient as 
criminals. 

The opportunity to attend religious services should be fur- 
nished to the inmates of every prison. Religious worship fur- 
nishes consolation to many persons, and religion, largely through 
its appeal to the emotion of fear on account of its minatory 
features, acts as a wholesome check upon some individuals. 
But attendance at religious ceremonies should be optional, and 
no inmate should be forced to be present at such ceremonies 
against his will, because this would be a gross violation of the 
principle of religious freedom, which should be observed in 
prisons as much as elsewhere. 

Nor is it to be expected, as many religionists erroneously 
assume, that religion can serve as a panacea for criminality, 
even in the case of the individual who is receptive to its emotional 
appeal and is amenable to its teachings. The religious devotee of 
weak character is in need of moral discipline as much as others 
who are not religious. Indeed, religious exaltation will some- 
times unduly emphasize the emotional nature in such a fashion 
as to increase weakness of character. 

Recreational facilities should be provided in every prison. 

prison contractors, and an ex-prisoner brought suit against the contractors 
for wages for his labor while he was working for them in prison. 



THE PRISON SYSTEM . 433 

However heinous the crime of a criminal, and however incor- 
rigible he may be, it is impossible to deprive a human being of 
every form of recreation and at the same time prevent him from 
becoming more abnormal physically and mentally. So that 
healthy and wholesome means of recreation should be provided, 
such as outdoor sports and indoor games, entertaining reading, 
dramatic spectacles, etc. As many as possible of these forms of 
recreation should be social in their character. These recreational 
facilities have great prophylactic value. They aid materially 
in solving the serious problems of discipline which arise in every 
penal institution. 

Prison Discipline 

Imprisonment is in itself a form of punishment. But it is 
necessary also to devize a system of prison penalties to be in- 
flicted upon those who commit offenses within the prison. Some 
of these offenses are against the penal code, such as murder and 
assault, for which the prisoner must be tried in a criminal court 
and condemned to an additional penalty. But most of them are 
offenses against the prison administration. Inasmuch as a 
prison is a community by itself, it must have its own system 
of government, and infractions of its rules and regulations create 
difficult problems of discipline. This is all the more true be- 
cause the prison population is by its very nature less amenable 
to discipline than the population at large, and therefore more 
prone to violate the prison rules. 

The first step in developing a system of prison discipline is to 
ascertain the causes of the misconduct of the inmates. Hereto- 
fore prison administrators have been prone to assume that mis- 
conduct on the part of the inmates was due to their natural 
"cussedness," and have therefore usually failed to discriminate 
in inflicting penalties. But our study of the causes of criminality 
outside of the prisons has shown that these causes are multiple 
and complex, and the causes of misconduct within the prison are 
almost as varied. This fact indicates still more emphatically 
the need for a scientific management of all penal institutions. 
A considerable part of the discipline of a prison should be di- 
rected from the medical and psychiatric laboratories, and not 
from the warden's office. 



434 • CRIMINOLOGY 

The preliminary classification of the criminals will reveal 
many important facts about their misconduct in prison. For 
example, the misdeeds of a paranoiac criminal are likely to be 
due to his insane delusions of persecution or of grandeur. But 
there are important differences between the members of the 
same class, and these individual idiosyncracies should be ob- 
served and noted by competent administrators who will be 
guided by this information in prescribing disciplinary measures. 

Let us consider, for example, such a prison offense as malinger- 
ing. The ordinary prison administrator usually assumes that 
all cases of malingering are due to the same fault, namely, lazi- 
ness. But medical and psychiatric investigation has revealed 
the fact that malingering is due to different causes in different 
types and in different individuals. 1 Thus the malingerer may 
feign illness in order to secure drugs which gratify an abnormal 
appetite, or because he is a hypochondriac, or he may mutilate 
himself in order to arouse sympathy. 2 It goes without saying 
that these causes should be recognized and considered in decid- 
ing how each case of malingering is to be treated. 

A scientific basis for prison discipline is all the more neces- 
sary because extensive powers must inevitably be placed in the 
hands of prison administrators and guards. It goes without 
saying that this discipline must be strict and the government of 
a prison must be repressive, because criminals are dangerous 
persons who have proved themselves to be enemies of society. 
Consequently, it is incumbent upon the officials in whose custody 
criminals are placed to protect society against them, and to 
execute the penalties which society has imposed upon them. 
But great danger is involved in placing almost unlimited power 
in the hands of human beings over other human beings, how- 
ever much in the wrong these persons have been in their past 
conduct. 

Consequently, prisoners should always possess the right to 

1 Dr. Lydston, who has been a prison physician, expresses the following 
opinion of malingerers: — "My experience leads me to believe that the ma- 
lingering of convicts is in itself a manifestation of incapacity — of a lack of 
physical and moral fiber." (G. Frank Lydston, Malingering among Crim- 
inals, in the J oar. Crim. Law, Vol. II", No. 3, Sept., 191 1, p. 388.) 

2 The causes and forms of malingering, though not in relation to prison 
life, are described at length in the following work: — John Collie, Malingering 
and Feigned Sickness, London, 1913. 



THE PRISON SYSTEM 435 

appeal from the treatment of prison officials to a superior au- 
thority, such as a court, or a prison board having supervision 
over the penal institutions of a city, state, or nation. But a 
more effective check in the long run over the abuse of power by 
prison officials is scientific knowledge on the part of these 
officials. When they possess insight into the causes of the 
misdeeds of their wards, they are much less likely to be governed 
by unilateral theories of the inherent wickedness of criminals 
in general, or to be inspired by feelings of personal vengeance in 
applying disciplinary measures. 

During the first half of the nineteenth century was developed 
the marking or grading system. 1 According to this system a 
prisoner earns good marks for good behavior and industry, 
and is given demerits for misbehavior. His marks and demerits 
then determine the privileges accorded to him, and, where there 
is an indefinite sentence, may also determine the time of his 
discharge. This system is now used in many penal institutions. 
The prisoners are sometimes graded according to their standing 
in the marking system. This system appeals to the self interest 
of the prisoners and induces many of them to behave themselves 
while in prison. But this does not necessarily indicate reforma- 
tion on the part of a criminal, because a dangerous criminal 
may be shrewd enough to behave himself while in prison to gain 
privileges thereby, but will commit quite as heinous crimes 
after leaving prison. On the other hand, an occasional criminal 
or a criminal by passion may find it difficult to adjust himself 
to the prison routine, though there is little danger of his com- 
mitting criminal acts again after leaving prison. 

Self Government in Prisons 

One of the most promising features of present day prison re- 
form is the effort to develop self government among prisoners. 
It is possible to appeal to most criminals both on altruistic 
and on egoistic grounds to assume some of the responsibility 
for their conduct within penal institutions. The grading system 
has sometimes been carried to the point where the more trust- 

1 This system was developed by Captain Alexander Maconochie, superin- 
tendent of English prisons in Van Dieman's Land (Tasmania), and Sir 
Walter Crofton, director of Irish prisons. 



436 CRIMINOLOGY 

worthy prisoners have been placed upon their honor and have 
been trusted with certain privileges. The principle of self- 
government carries the honor system further, and organizes 
all the prisoners or a part of them into a social unit which is 
held responsible for the conduct of its members. Thus the re- 
sponsibility of a prisoner becomes in part social as well as indi- 
vidual. By violating the regulations of the institution he endan- 
gers not only his own privileges, but also those of his fellows. 
In this fashion the social and altruistic traits of the criminal 
are encouraged to develop. 

It goes without saying that complete self government can 
never be attained in a penal institution. The ultimate seat of 
authority must always remain in the hands of the prison ad- 
ministration. The amount of self government which can safely 
and profitably be granted must depend upon the nature of the 
inmates of an instiution. In an asylum for insane or feeble- 
minded criminals it may be possible to grant little or no self 
government. In a reform school for very young delinquents 
comparatively little self government may be possible. But in a 
prison for adult criminals, many of whom are occasional crimi- 
nals and few of whom are incorrigible, it is feasible to in- 
troduce a considerable measure of self government. In such a 
prison the inmates may be permitted to elect a council of their 
own which is given the power to legislate with respect to certain 
matters, and to try and punish the inmates for certain offenses. 1 

Self government almost invariably decreases greatly the 
number of infractions of the prison rules, for the inmates are 
afraid of losing their cherished privileges. So that it solves 
many of the difficult problems of discipline for the prison ad- 
ministrators. Furthermore, it furnishes the prisoners an ad- 
mirable training in self control and social responsibility, and 
prepares them for their later life in society at large. At the same 
time the prisoners must never be permitted to forget the strong 
hand of the prison administration, for otherwise attempts to 
escape will become frequent, while a lax administration may lead 
eventually to a general uprising of the inmates. 

1 For descriptions of self government in American prisons see the follow- 
ing books: — B. G. Lewis, The Offender, New York, 1917, especially Part I, 
Chapters VIII and IX; T. M. Osborne, Society and Prisons, New Haven, 
19 1 6, especially Chapter IV. 



the prison system 437 

Sex Problems in Prisons 

One of the most difficult problems of prison administration 
arises out of the strict segregation of the sexes which is inevit- 
able in penal institutions. It is needless to say that the sexual 
instinct gives rise to a normal impulse for sexual intercourse 
which craves satisfaction in all adults. Consequently, it is in- 
evitable that when sexually mature individuals are suddenly 
and rigidly cut off not only from sexual intercourse, but also from 
association of any sort with the opposite sex, mental and some- 
times physical disturbances as well are certain to arise in many 
of these individuals. The result is that onanism (masturbation), 
homosexuality, and other forms of sexual perversion are always 
prevalent among both male and female prisoners. Furthermore, 
many other prison offenses are due to the drastic repression of 
sex in prison life. This repression is likely to have the gravest 
effect upon those who have been accustomed to regular sexual 
gratification previous to imprisonment. 

Unfortunately few prison administrators and reformers have 
comprehended the true nature of this situation, and many of 
the most stupid errors and gravest brutalities of prison manage- 
ment have arisen out of this lack of comprehension. 1 Most of 
these administrators and reformers have regarded these sexual 
abnormalities as arising solely out of the moral perversity of their 
unhappy victims, and have subjected them to cruel repressive 

1 It is strange indeed that few references are made to this important 
phase of prison life in criminological literature. This is doubtless due in 
part to prudishness, as well as to a failure to appreciate its significance. 
Even those who have described their own prison life have failed to describe 
this feature of prison life. This is probably due in part to prudishness, but 
also to prudential considerations. A notable exception is the anarchist 
Berkman, who spent fourteen years (1892-1906) in the Western State Peni- 
tentiary of Pennsylvania near Pittsburgh for attempting to kill Henry C. 
Frick. This prison is conducted in the main upon the principle of solitary 
confinement, which is peculiarly prone to develop these sexual abnormalities. 
According to Berkman's graphic account the administration of this prison 
was brutal in the extreme. (Alexander Berkman, Prison Memoirs of an 
Anarchist, New York, 191 2.) 

Berkman devotes three chapters of his prison memoirs to the develop- 
ment of sexual abnormalities in prison, namely, Chapter XV on "The Urge 
of Sex"; Chapter XXVII on "Love's Dungeon Flower"; and Chapter XL1II 
on "Passing the Love of Woman." The last is especially important, since 
it describes the evolution of homosexuality in prison. 



438 CRIMINOLOGY 

measures. The first step in dealing with this serious problem is 
to ascertain the causes of sexual abnormality in each case in 
which it is detected. This involves, in the first place, discovering 
whenever possible whether or not the prisoner possessed this 
abnormality before entering the prison. In the second place, 
it is essential to ascertain the forces in the prison life which have 
caused or have accentuated this abnormality. 

Sexual abnormality can never be entirely prevented in prisons, 
because prison life itself is highly abnormal. Consequently, 
the only ultimate solution for this problem is the abolition of 
the prison system, which I shall discuss in the following chap- 
ter. But a number of prophylactic measures can be taken to 
reduce the amount of sexual abnormality as much as possible. 
The prisoners should be fed healthful food which will not stimu- 
late the sexual functions unduly, but not drugs which will 
depress these functions, as is done in some prisons. They should 
have plenty of opportunity for healthy exercize in work and 
in play, so that they will go to bed each evening physically 
tired. 

The hours of recreation should be passed as far as possible in 
association with each other, and engaged in entertaining and 
profitable pastimes. Furthermore, they should be given in- 
struction as to the harmful effects of abnormal sexual habits. 
But this instruction should not be based upon alleged moral 
principles, but upon biological and psychological facts. They 
should be warned as to the injury these habits will do them not 
only in prison but after they leave prison, in case these habits 
become firmly fixed upon them. 

It may be desirable to segregate those who become firmly es- 
tablished in such habits, in order that they shall not be fur- 
nishing bad examples to the other prisoners. Furthermore, 
any prisoner attempting to instigate another to acquire such a 
habit should be punished. But there should be no penalty for 
the sexual abnormality itself. Such penalties are unjust and 
therefore brutal, and are almost certain to do harm in the end. 
On the contrary, each patient should be given the sort of psy- 
chiatric and medical treatment which will be most helpful to 
him, in order to aid him to overcome the habit if possible. By 
these measures only can abnormal sexual habits be reduced to 
any appreciable extent in prisons. 



• the prison system 439 

The Prison Psychosis 

The abnormal character of prison life is prone to develop a 
peculiar kind of psychosis in some of the prisoners, and this 
psychosis is likely to develop into insanity. In a review of 
studies of prison insanity made in Germany two psychiatrists 
have described the factors which give rise to the prison psychosis 
in the following words: — "The inmate of a reformatory who 
spends most of the day in company with other prisoners, or in 
the open, and who as a whole leads during his imprisonment a 
more rational life than that which his poor home surroundings 
or his vagabond existence afforded him, will seldom develop 
a mental disorder as the result of his imprisonment. ... In 
contrast, however, to the workhouse or reformatory, the peni- 
tentiary, with its long term sentence, its solitary confinement, 
its hard labor and enforced mutism, its monotonous occupation 
and severe discipline, its entire mode of life favorable for the 
development of anemia and phthisis, furnishes greater oppor- 
tunity for the development of mental disorders." 1 

These authors state that the occasional criminal and the 
criminal by passion apparently develop insanity more frequently 
than the habitual criminal, because it is more difficult for them 
to adapt themselves to prison life, and the emotional shock is 
greater for them. This explanation is doubtless true so far as 
it goes. But it should be supplemented by the statement that 
habitual criminals, who should preferably be called professional 
criminals, have passed through a process of selection which has 
weeded out those who are likely to become insane. In other 
words, the criminals who are predisposed to insanity are likely 
to become insane while they still are occasional criminals, and 
before they have had time enough to become professional crim- 
inals. 

The Prison Type 

The prisoners who develop the prison psychosis may be re- 
garded as belonging to the "prison type." 2 This is a more or 

1 Paul Nitsche and Karl Wilmanns, The History of the Prison Psychoses, 
New York, 191 2, p. 13. See also W. A. White, A Prison Psychosis in the 
Making, in the Jour. Crim. Law, Vol. IV, No. 2, July, 1913, pp. 237-246. 

2 A widely advertized, popular prison reformer of the day, after a silly 



44° CRIMINOLOGY 

less genuine psychiatric entity which is certain to be brought 
into being by any prison system. It is, however, hopeful to 
note in the above citation that the factors emphasized are soli- 
tary confinement, mutism, monotony, etc. As these features 
are eliminated from prison life, the prison psychosis will doubt- 
less become more and more rare. 

It must not, however, be thought that this is the only prison 
type. The recidivist, long inured to prison routine, may not 
develop the prison psychosis. But he is sure to acquire certain 
mental complexes which are more or less peculiar to prison 
life, and which will always serve to differentiate him somewhat 
from persons who have never lived for long periods of time in a 
prison. We know very little as yet about the mental complexes 
which are acquired in prison. When they have been carefully 
studied by psychologists and psychiatrists, they will throw a 
flood of light upon the effects of prison life upon mind and char- 
acter. 

and senseless diatribe against criminologists, expresses the opinion that 
"while there is no such thing as a criminal type, there is a 'prison type.'" 
(T. M. Osborne, Society and Prisons, New Haven, 1916, p. 27.) But because 
of his ignorance of the science of criminology, which he contemns, Mr. Os- 
borne fails lamentably to give a satisfactory description of the prison type. 



CHAPTER XXVII 
A SCHEME OF PENAL TREATMENT 

Prison evils — Houses of detention — Local jails — Reception and observa- 
tion prisons — Types of penal institutions: reformatories; colonies; 
asylums; penitentiaries — Release and after-care — Substitutes for 
imprisonment — Corporal punishment — Restitution — Sterilization. 

The penal problem is fundamentally a problem of the manip- 
ulation of human character. Inasmuch as the criminal has by 
reason of his anti-social conduct forfeited his right to freedom, 
it becomes the function of the state to prescribe in almost every 
detail the conditions of his existence. With the exception of 
the rearing of the young, there could be no better opportunity 
for endeavoring to develop human character along useful social 
lines. For this reason I have insisted throughout this discussion 
upon the necessity of utilizing scientific methods in penal treat- 
ment, and of applying the principle of the individualization of 
punishment, which requires a careful study of each criminal 
in order to ascertain his peculiar needs. 

Prison Evils 

Penal institutions as they now exist in this country and in 
other civilized countries fall far short of attaining the ideal 
suggested above. Many of them are built in such a fashion 
as to be insanitary and needlessly uncomfortable for their in- 
mates. The administration of most of them is either harsh and 
brutal, or, to say the least, does not lend itself readily to the 
individualization of punishment. The contract labor system 
vitiates the management of some of them. It is no wonder 
that under these conditions many criminals are more dangerous 
to society when they leave prisons than when they entered 
them. In each of these cases society has lost a valuable oppor- 
tunity to improve human character. 1 

1 Prison conditions are described in many writings of which I will men- 
tion the following: — Clarissa Olds Keeler, American Bastiles, Washington, 



44 2 CRIMINOLOGY 

It goes without saying that these evils should be removed. 
Prisons should be well built, so that they will be sanitary and 
healthful and moderately comfortable. Prison administration 
should be humane and intelligent, as well as strict. The con- 
tract labor system should be abolished. Nor must it be thought 
that these reforms will make prisons attractive places for crim- 
inals. Even under ideal prison conditions imprisonment con- 
tinues to be a punishment, for there are very few if any human 
beings who like to have their lives regulated to the extent that 
is necessary in a prison. 

But it is essential to go further, and to outline a system of 
penal institutions which will successfully apply the principle of 
the individualization of punishment. Some of the features of 
such a penal system are already foreshadowed in the more 
progressive penal institutions of today, but many of them we 
can only predict and surmise. 

Houses of Detention 

Houses of detention, such as police stations and local jails in 
so far as they are used for purposes of temporary detention, are 
not penal institutions. But they are prisons in the sense that 
persons are temporarily detained in them in the interest of so- 
ciety. However, it is essential to bear in mind that many of 
these persons are not criminals. They are defendants in crim- 
inal cases who will be acquitted, and some of them are witnesses. 
Consequently, these places should be sharply differentiated 
from penal institutions, and should be known as houses of deten- 
tion. Each person detained should be given a small but com- 
fortable room and not a cell. He should not be placed under 
unnecessary surveillance, and should not be forced to associate 

1 910; Our Penal System and Its Purposes, published by the Gahcston-D alias 
News, Texas, 1909; C. A. Ellwood, A Bulletin on the Condition of the County 
Jails of Missouri, University of Missouri, 1904. 

Prison life and conditions have been described from within by many in- 
mates and former inmates of whose writings I will mention the following: — 
D. Lowrie, My Life in Prison, New York, 191 2; A. Berkman, Prison Memoirs 
of an Anarchist, New York, 191 2; J. Hawthorne, The Subterranean Brother- 
hood, New York, 1914; F. Martyn, A Holiday in Gaol, London, 191 1; A. 
Cook, Our Prison System, London, 1914; "John Carter," Prison Life as I 
Found It, in The Century Magazine, Vol. LXXX, No. 5, September, 19 10, 
PP- 752-758. 



A SCHEME OF PENAL TREATMENT 443 

with other detained persons. In small communities the house of 
detention may be under the same roof with the local jail, but 
should be separated from it internally. 

These measures are necessary in order to do justice to those 
who are forcibly detained, but who are not necessarily guilty of 
any offense. It is well for each person to bear in mind that at 
some time or other he may find himself detained in one of these 
houses. But they are also necessary for the protection of the 
public. If a house of detention is not sanitary, it may act as a 
potent force to spread infectious diseases throughout the com- 
munity. If the inmates are not kept carefully segregated, it will 
serve to spread moral contamination throughout the com- 
munity. In other words, a house of temporary detention 
should be constructed and managed upon the theory that it is 
going to be used for the healthy and the innocent as well as for 
the diseased and the criminal. This theory has frequently been 
ignored, and these houses have usually been regarded as penal 
institutions. 

Local Jails 

Local jails are needed for short term sentences under six 
months in length, or one year at most. These jails should be 
well built and comfortable. Some work should be required of 
the inmates, but it is not possible in these jails to introduce an 
elaborate system of labor and of compensation for the prisoners. 
In some cases these jails have been located upon a farm or 
adjacent to a stone quarry where work not requiring much 
training can be carried on. These institutions should be used 
only for adult offenders. As short sentences are gradually 
abolished and other minor penalties introduced, the need for 
local jails will disappear in course of time. 

These local jails and workhouses have been among the worst 
penal institutions in this country, 1 partly owing to the difficulty 
of carefully supervizing them. It has been suggested that 

1 Many of the foreign delegates at the International Prison Congress in 
Washington in 19 10 expressed themselves as astonished and shocked at the 
condition of many of our local jails and workhouses. (See, for example, 
Ugo Conti and Adolphe Prins, Some European Comments on the American 
Prison System, in the Jour. Crim. Law, Vol. II, No. 2, July, 191 1, pp. 199- 
215O 



444 CRIMINOLOGY 

small communities should unite in having common local jails. 1 
For example, several counties might have a jail in common in- 
stead of each having a separate jail. This jail would be much 
larger than the ordinary county jail, and would be administered 
much better because it would be possible to secure more com- 
petent officials to manage it. Instead of having a jail or work- 
house in each county, the great majority of which are badly con- 
structed and managed, it would be possible to have a few good 
jails in each state. This scheme will probably succeed where 
the counties are not widely separated, as they are in some of the 
Western states. It will doubtless remove many of the evils of 
local jails and workhouses. 

Reception and Observation Prisons 

Those who are guilty of serious crimes, or of persistent re- 
cidivism, should be sent first to reception and observation 
prisons. These prisons should be built and equipped in such a 
fashion as to make it possible to make a careful examination of 
each of these convicts. This examination should be made during 
a period of observation lasting from a few days to a month, and 
perhaps even longer in difficult cases. When the offender has 
been properly classified he should be sent to the most suitable 
institution. The reception and observation prison would there- 
fore serve as a clearing-house for all of the penal institutions to 
which criminals are committed for long and indefinite terms. 
It might even happen in some cases that the scientific directors 
of the observation prison would recommend to the court that a 
form of penal treatment other than imprisonment was desirable. 

Types of Penal Institutions 

It is obviously impossible to provide a special prison for every 
conceivable type of criminal. But there will doubtless be the 
following principal groups of penal institutions with as many 
subdivisions as seems necessary: — 

i. Industrial reform schools and reformatories. 

2. Industrial and farm colonies. 

1 See, for example, L. N. Robinson, The Solution of the Jail Problem, in 
the Jour. Crim. Law, Vol. VI, No. i, May, 1915, pp. 101-103. 



A SCHEME OF PENAL TREATMENT 44$ 

3. Asylums for the insane, the feebleminded, and the in- 
ebriates. 

4. Penitentiaries for the incorrigible. 

The reform schools and reformatories should be for the 
youthful offenders who give promise of reform. To these in- 
stitutions also might be sent some of the high-grade feeble- 
minded who are capable of receiving industrial training. 

To the industrial and farm colonies should be sent the mature 
occasional criminals and criminals of passion who are not com- 
mitted to the local jails for short sentences. But the principal 
types of offenders for these institutions should be vagrants and 
recidivists who ordinarily commit petty offenses. The maximum 
length of their sentences should vary according to the number 
of offenses they have committed. 

The criminal asylums should be for the distinct abnormal and 
pathological types. There should be an asylum for the criminal 
insane, one for the criminal aments, and one for the criminals 
who are inebriates. Some of the insane criminals, and some of 
the inebriates may be cured and can be released with safety. 
But the remainder are incurable, and should be permanently 
incarcerated like the criminal aments. 

Many of the incorrigible criminals will be sent from the 
reception prison to these asylums. But the criminals who do not 
belong to a distinct psychiatric type, and whose careers have 
shown that they are in all probability incorrigible, should be 
sent to penitentiaries, where they will be kept for long terms and 
in some cases permanently. As the specialized institutions be- 
come more fully differentiated, there will be a constantly de- 
creasing number of incorrigible criminals to be sent to the 
penitentiaries. These incorrigibles will probably be in the main 
professional criminals who are too long habituated to a criminal 
career to be able to change. 

In some of the penal colonies have developed convict com- 
munities which have acquired a considerable degree of autonomy. 
In some of these communities the convicts are permitted to 
marry and raise families, to carry on their own industries, and 
sometimes to govern themselves to a large extent. To these 
communities are sent the convicts who have been sentenced for 
life or for long terms, and who have made good records in the 
first few years of their imprisonment. This is an excellent 



446 CRIMINOLOGY 

method of dealing with some of these criminals, and such com- 
munity life should be developed as far as possible in every prison 
system. 1 

Political and evolutive offenders should be distinguished from 
common criminals in all penal institutions, however severe may 
be the punishment inflicted upon them. This distinction may be 
made by housing these offenders in a separate building wherever 
this is possible, by subjecting them to a different regime, etc. 

Release and After-Care 

However good institutional treatment may be, it may fail if 
the inmate is not released at the right time, and is not given 
suitable after-care. There should be a competent parole au- 
thority capable of discerning the proper moment for the release 
of each prisoner between the minimum and maximum limits 
prescribed by the law. The prisoner may be readily injured by 
being kept in prison either too short a time or too long a time. 
A parole board having in its membership representatives of the 
prison administration and of the judicial system is probably the 
best authority for deciding the time of release. 

The parole board should also exercize a watchful care over the 
convict for a time after he is released. In the first place, it 
should maintain an employment bureau through which to secure 
positions for the discharged prisoners. Otherwise the ex-convict 
is likely to fall back again into a life of crime through lack of 
employment. In the second place, the parole board should 
exercize supervision over the expenditure of the wages which 
the convict may have accumulated while in prison. In the third 
place, the board should keep a record of the career of each ex- 
convict for some years after he leaves prison, in order by means 
of these statistics to test the success of imprisonment and of 
parole. At the same time the ex-convicts should not be sub- 
jected to an irksome surveillance, for this may hamper them 

1 The French convict community in the penal colony of New Caledonia 
has been described in the following book: George Griffith, In an Unknown 
Prison Land, London, 1901. The Philippine convict community known as 
the Iwahig Penal Colony on the Island of Palawan has been described in 
the following article by the Director of Prisons in the Philippine Islands: 
W. H. Dade, The Prison System of the Philippines, in The Delinquent, Vol. 
VI, No. 19, October, 1916. 



A SCHEME OF PENAL TREATMENT 447 

greatly in their later careers by revealing their prison records to 
the world, and by humiliating them unnecessarily. 

Substitutes for Imprisonment 

But imprisonment should not be the ideal of penal treatment. 
In the preceding chapter I have stated the defects inherent in 
imprisonment. I have shown that prison life can never be a fair 
test of fitness for life in society at large. Consequently, it should 
be the aim of every penal administration to diminish as rapidly 
as possible the use of imprisonment as a form of punishment. 
It will never be possible to abolish imprisonment entirely, be- 
cause there will always remain a residuum of criminals who are 
so dangerous to society that it is necessary to incarcerate them 
for the protection of society. But substitutes should be devized 
as rapidly as possible for most of the forms of imprisonment. 

Some of these substitutes are already being tried. Enforced 
labor on roads, farms, etc., with a small compensation, is being 
used in several countries as a form of penal treatment for petty 
offenders and criminals who furnish promise of reformation. 
Labor under custodial care should be used much more as a form 
of penal treatment. 1 

Corporal Punishment 

Corporal punishment has been used extensively in the past, 
and is sometimes advocated today not so much as a substitute 
for imprisonment but in addition to it. In fact, flogging has 
recently been made a penalty for procuration in England, and 
for wife-beating in some states in this country. The romantic 
notion that it is a poetic penalty doubtless has much influence 
upon the minds of many of the advocates of corporal punish- 
ment. I have already pointed out in Chapter -XXII that poetic 
penalties frequently are inefficacious. There is no more reason 
for applying corporal punishment to procurers and wife-beaters 
than to other criminals, for economic and psychopathic factors 
are causes of procuration and wife-beating just as they are causes 
of many other kinds of crime. 

1 This method is being used in several states in this country, such as 
Colorado, Vermont, Oregon, etc., and in Ontario in Canada. See Good 
Roads and Convict Labor, published by the New York Academy of Political 
Science, New York, 19 14. 



'448 CRIMINOLOGY 

Corporal punishment is almost invariably brutalizing not 
only to its victims but also to those who administer it. Further- 
more, it is likely to arouse sadistic and masochistic feelings and 
impulses which should be rigorously suppressed. Any one 
acquainted with the causes and history of flagellation is well 
aware of the close connection between corporal punishment 
and these abnormal sexual tendencies. 1 Consequently, cor- 
poral punishment should not be tolerated by the law in any penal 
system, except possibly for a few young offenders for whom it 
should be prescribed by competent scientific authorities. 

The brutalizing effect of corporal punishment upon the public 
at large must also be remembered. For the same humanitarian 
reasons that capital punishment should be abolished, corporal 
punishment should be prohibited. It is inconceivable that its 
use as a substitute for imprisonment can be extended. 

Restitution 

One of the best substitutes for imprisonment is restitution. 
Whenever possible an offender should be forced to make rep- 
aration to the victim of his crime. In the case of theft the thief 
should be forced to repay at least in part what he has stolen. 
In the case of a crime against the person the criminal should be 
required to indemnify his victim at least in part for the injury 
he has done to him. In some cases restitution may be sufficient 
for punitive purposes. In other cases it may well constitute a 
part of the penal treatment. 

Enforced reparation has an excellent psychological and moral 
effect upon the offender. It impresses upon his mind in a direct 
and concrete fashion the nature of the injury he has caused 
another person. It indicates to him the inevitable consequences 
of his conduct to others, and thus teaches him his social and 
moral responsibilities. It therefore has great educational as 
well as punitive value. 2 

1 Numerous books have been written about flagellation, and there is much 
information upon this subject in psychiatric literature. A good recent dis- 
cussion of corporal punishment is to be found in the following book: — H. S. 
Salt, The Flogging Craze, London, 1916. 

2 Herbert Spencer pointed out the pedagogical significance of this prin- 
ciple more than half a century ago in his treatise on education. See the. 
chapter on "Moral Education" in his Education, New York, i860. 



A SCHEME OF PENAL TREATMENT 449 

Furthermore, restitution secures justice for the victims of 
crime who at the present time can secure no reparation without 
recourse to the civil law, and this recourse is usually ineffectual. 
It would be desirable to change many if not all of the fines now 
imposed as penalties into indemnities to the victims of crimes. 

Sterilization 

In a few states in this country laws have been enacted making 
sterilization a penalty. 1 One of the principal motives back of 
this legislation has been to prevent criminals from reproducing 
themselves on the theory that their criminality will be trans- 
mitted to their offspring. It is obvious that criminality per se 
cannot be inherited. Furthermore, it is hardly justifiable to use 
a form of mutilation as a punishment. But it is legitimate to 
impose sterilization when an individual has an unquestionably 
hereditary trait which is dangerous to society. Most of the 
legislation on this subject in this country violates this scientific 
principle, and should be revized accordingly. 

Suitable forms of punishment based upon the scientific prin- 
ciples which have been outlined in this book must be worked 
out through experience. Furthermore, forms of penal treatment 
must vary somewhat from age to age in accordance with chang- 
ing social conditions and the corresponding changes in the traits 
of criminals. 

1 See the reports made in 1914, 1915, and 1916 by the committee on the 
sterilization of criminals of the "American Institute of Criminal Law and 
Criminology." 



PART VI 
CRIME AND SOCIAL PROGRESS 



CHAPTER XXVTII 

POLITICAL AND EVOLUTIVE CRIMES AND 
CRIMINALS 

The distinction between common crimes and political and evolutive crimes 

— Evolutive and involutive vice — Freedom of thought and of action 

— Political freedom — Freedom of speech — Treason and sedition — 
The types of evolutive and political criminals: radicals and conserva- 
tives; the pathological type; the emotional type; the rational type — 
The instigation of political and evolutive crimes — The treatment of 
evolutive crime. 

It is customary in criminological writings to distinguish be- 
tween common crimes and political crimes. Common crimes 
are acts contrary to the law committed in the interests of the 
individual criminal or of those personally related to the criminal. 
Political crimes are acts contrary to the law committed against 
an existing government or form of government in the interest 
of another government. or form of government. 

Common crimes committed in the course of political activities 
are sometimes called political crimes, such as the theft of public 
funds, the misuse of power by governmental officials, and other 
offenses against the government in the interests of individuals 
committed by dishonest office-holders, corrupt politicians, and 
others. 1 But inasmuch as these crimes are committed in in- 
dividual interests, they are common crimes and not political in 
the criminological sense defined above. 

1 For example, Proal's book on political crime is devoted largely to a dis- 
cussion of financial, electoral, and judicial corruption in governmental 
matters, political assassinations for individual purposes, Machiavelism, 
hypocrisy, demagoguery, bribery, etc., in political affairs. In so far as he 
discusses genuine political crimes, such as political assassinations in the 
public interest, the illegal acts of revolutionists, anarchists, socialists, and 
other propagandists for changes in society, etc., he seems inclined to regard 
them as common crimes. This is due to the reactionary point of view of 
this writer who in all his writings reveals his inability to comprehend that, 
as an evolutionary phenomenon, society is certain to change, and that many 
changes are highly desirable. (L. Proal, La criminality politique, Paris, 
1895; Eng. trans., Political Crime, New York, 1898.) 



454 CRIMINOLOGY 

The Distinction Between Common Crimes and Political 
and Evolutive Crimes 

Many political assassinations by regicides, 1 acts against the 
government committed by rebels in revolts, revolutions and 
civil wars, and many similar acts are political crimes. Many 
treasonable acts also are political crimes. They are political 
crimes when committed for the purpose of changing or over- 
throwing the existing government in the interest of the public. 
But they are common crimes when committed in the interests 
of individuals. So that it is the character of the motive back 
of the treasonable and illegal act which determines whether it is 
a political or a common crime. 

It is also customary to regard as political crimes acts com- 
mitted by the citizens of one state against the government of 
another state. Thus spying in times of peace and all warlike 
acts in time of war against another country constitute political 
crimes. They may or may not be treasonable according to the 
existing law of treason. They may not even be tried in criminal 
courts, but by military tribunals according to military law. 
However, in accordance with criminological usage, they belong 
in the category of political crimes. 

It is, of course, true that all crimes are in one sense political, 
because they involve violations of laws which are promulgated 
by governments and are therefore political phenomena. But 
there is a genuine distinction between the crimes which are in 

1 The following are a few of the political assassinations committed during 
the past century: Tsar Paul of Russia in 1801, Prime Minister Percival of 
England in 181 2, Due de Berri of France in 1820, President Lincoln of the 
U. S. in 1865, Sultan Abdul Aziz of Turkey in 1876, President Garfield of 
the U. S. in 1881, Tsar Alexander II of Russia in 1881. President Carnot 
of France in 1894, Premier Stambouloff of Bulgaria in 1895, Shah Nasr-ed- 
dine of Persia in 1896, Premier Canovas del Castillo of Spain in 1897, King 
Humbert of Italy in 1900, President McKinley of the U. S. in 1901, King 
Alexander and Queen Draga of Servia in 1903, Minister of the Interior Von 
Plehve of Russia in 1904, Grand Duke Sergius of Russia in 1905, King 
Carlos and the Crown Prince of Portugal in 1908, Premier Boutros of Egypt 
in 19 10, Minister of War Nazim Pasha of Turkey in 19 13, President Madero 
of Mexico in 1913, King George of Greece in 1913, Archduke Francis Fer- 
dinand of Austria in 19 14. 

Most of the above-mentioned assassinations are correctly designated as 
political crimes, while a few of them doubtless were common crimes because 
they were committed solely in the interests of individuals. 



POLITICAL AND EVOLUTIVE CRIMES 455 

criminological terminology called political and the common 
crimes. Furthermore, there are other offenses against the law 
which are not common crimes, and yet are not political crimes 
in the usual criminological sense. These are illegal acts com- 
mitted in accordance with and in defense of fundamental human 
rights, and in the course of various movements for bringing about 
more or less extensive social and economic changes in society. 
While these acts are in the last analysis directed against existing 
governments or forms of government, this is not their immediate 
object as is the case with ordinary political crimes. Their im- 
mediate object usually is to bring about far-reaching and funda- 
mental moral, social, and economic changes which will in turn 
affect the form of the government. 

Among these crimes, which are broader than the ordinary 
political crimes, are offenses in defense of the right to freedom 
of thought and belief, in defense of the right to express one's 
self in words in free speech, in defense of the right to dispose of 
one's life as in suicide, etc. ; and many illegal acts committed by 
conscientious objectors to the payment of taxes or to military 
service, the. offenses of laborers in strikes and other labor dis- 
turbances, the violations of law committed by those who are 
trying to bring about changes in the relations between the sexes, 
etc. 

Common crimes are almost invariably anti-social in their 
nature, while offenses which are directly or indirectly political 
are usually social in their intent, and are frequently beneficial 
to society in their ultimate effect. We are, therefore, justified 
in calling them social crimes, as contrasted with the anti-social 
common crimes. Inasmuch as these social crimes frequently 
contribute to social progress, while the anti-social common 
crimes are opposed to social progress, Ferri has characterized 
the social crimes as evolutive, as contrasted with the involutive 
or atavistic anti-social crimes. 1 In similar fashion Maxwell 



1 "There exists an atavistic and an evolutive criminality. The first is 
the common criminality such as is shown in the muscular and atavistic 
form, strictly speaking, or the spurious form, a form modern and modified 
by evolution. The second is the politico-social criminality which, under 
one or the other of the two forms, tends (in a more or less illusory way) to 
hasten the future phases of politico-social life." (E. Ferri, Criminal So- 
ciology, Boston, 191 7, p. 335.) 



456 CRIMINOLOGY 

has designated these two groups of crimes as the anterograde 
and retrograde crimes. 1 

A similar distinction can be made between evolutive and in- 
volutive vice. Conduct which is injurious to the body and mind 
must at all times and places be regarded as vicious as soon as its 
injurious effect is discerned. Such vice is involutive and anti- 
social in its character. But many forms of conduct have been 
stigmatized as vicious, owing to magical notions, religious be- 
liefs, and conventional moral ideas, which have eventually 
proved to be harmless and frequently beneficial. In such cases 
the alleged viciousness of persons guilty of these forms of con- 
duct must be regarded as evolutive and social. 

Freedom of Thought and of Action 

It may be said, generally speaking, that the great majority of 
political and evolutive crimes are committed in behalf of freedom 
of thought or of freedom of action. It is true that occasionally 
political crimes are committed by reactionaries who are opposed 
to freedom, but these are comparatively rare for the obvious 
reason that those in favor of more repression are not likely to 
oppose the repressive measures already in force. 

Freedom of thought and freedom of action are closely related 
and shade into each other almost imperceptibility. It may ap- 
pear at first sight as if freedom of thought is inalienable because 
the mental processes of every one are internal, and are perforce 
free from any direct supervision and control from outside. But 
practically speaking freedom of thought is of little value if not- 
accompanied with certain forms of freedom of action. If people 
are not permitted to communicate their thoughts to each other, 
there will be lacking the exchange of ideas and information, and 
the freedom of discussion which is the most powerful stimulant 
of all kinds of thinking. 2 Furthermore, thinking leads inevitably 
to forms of belief, religious or otherwise, which necessitate cer- 

1 "II y a done deux aspects dans la criminalite; comme je 1'ai indique, il 
y a une criminalite retrograde, et line criminalite anterograde; celle-la, 
representant des moeurs condamnes par revolution, celle-ci des moeurs qui 
se generaliseront plus tard." (J. Maxwell, Le concept social du crime, Paris, 
1914, p. 52.) 

2 Cf. W. Bagehot, Physics and Politics, New York, 1884. See especially 
Chapter V entitled "The Age of Discussion." 



POLITICAL AND EVOLUTIVE CRIMES 457 

tain forms of action, so that freedom of thought implies more or 
less freedom of action. Thus freedom of thought implies, to say 
the least, freedom of speech; freedom of publication in the press, 
in books, etc.; and freedom of belief, religious or secular. 1 

Freedom of action has been greatly limited in the past, and 
still is limited in many important respects. In the past there has 
been an enormous amount of regulation of the details of daily 
life by means of sumptuary legislation. This legislation pre- 
scribed the clothing, food, etc., of the people. Most of this legis- 
lation has disappeared in civilized countries, though it crops 
out occasionally in the form of prohibitions against the use of 
alcoholic beverages, drugs, etc. 

In this chapter I shall describe the social and evolutive 
crimes which assume a political form, that is to say, which are 
aimed directly at the government or rulers. In the following 
chapter I shall describe the social and evolutive crimes which are 
not aimed directly at the government or rulers, and are, there- 
fore, only indirectly political in their form. 

Restrictions upon Freedom 

There still is much . limitation of political freedom, even in 
civilized countries. Wherever power is held by hereditary mon- 
archs and aristocracies, this power is a limitation upon the poli- 
tical freedom of the remainder of the population. Out of this 
power arise the unjust special privileges of monarchs, such as the 
laws against Use majeste. There is no reason why monarchs 
should be immune from criticism any more than other mortals. 
They are entitled only to the protection of the laws against 
slander and libel which belongs to all. 

Whenever the suffrage is limited to one sex, the denial of the 
right of suffrage to the members of the other sex is a limitation 
upon their political freedom. All special political privileges 

1 Excellent descriptions of the nature and history of the freedom of 
thought are given in the following works — : J. M. Robertson, A Short History 
of Freethought, London, 1906, 2 vols.; J. B. Bury, A History of Freedom of 
Thought, London, 191 3. Both of these writers describe the ways in which 
Christianity has restricted the freedom of thought in the occidental world, 
and the forces which have opposed Christianity. They also point out the 
dangers to freethought which still exist, and which may restrict it in the 
future. 



45§ CRIMINOLOGY 

may be regarded as limitations upon the freedom of those who 
are discriminated against. There is, nevertheless, justification 
for limiting the political rights and powers of the young and the 
mentally deficient, because of the obvious incapacity of these 
classes for exercizing these rights and powers. But there can 
be no justification for limiting the political freedom of any other 
groups, with the possible exception of a few of the criminals who 
may be regarded as having forfeited their right to such freedom. 
This means a democracy in the political world in which all 
persons have the same rights and powers with the exception 
of the above-mentioned groups. 

Some of the restrictions upon the freedom of speech doubtless 
are justifiable and inevitable. It is inconceivable that the time 
will ever come when it will not be necessary to restrict freedom 
of speech and publication when it leads to the making of false 
statements about persons in the form of slander and libel, be- 
cause such statements constitute gross violations of individual 
rights and liberties. Furthermore, it will always be necessary 
to prohibit fraudulent statements. The laws against slander, 
libel, and fraudulent statements are absolutely necessary to 
protect the rights of the individual against the malice and intent 
to injure of other persons. 

It will also be necessary always to have at least a few restric- 
tions upon the freedom of speech when it is used for the purpose 
of inciting common crimes. It is inevitable that a government 
should prohibit incitement to crime, for it would manifestly 
be inconsistent for a government to prohibit certain acts, and 
then to permit persons to do all in their power to induce others 
to violate these prohibitions. But a law forbidding incitement 
to crime should be carefully worded so as to include only direct 
incitement to crime, and should never be construed by the courts 
so as to include statements or deeds which might indirectly lead 
to crime. Such a law should also never be used to suppress 
criticism of the wisdom of any law, or agitation for the repeal of 
a law. Furthermore, whenever it is evident that a person has 
incited others to criminal acts in the belief that the laws which 
make those acts criminal are wrong, or that these acts are neces- 
sary for the furtherance of a desirable social or political move- 
ment, this person should be tried and penalized as an evolutive 
and political offender, and not as a common criminal. 



POLITICAL AND EVOLUTIVE CRIMES 459 

The laws against treason are inevitable in any political state, 
because a government must create and enforce such laws for 
its own self preservation. But such laws should make treason- 
able only overt acts directed towards the overthrowal of the 
state, and not offenses against the royal family, etc., as is true 
in some countries. The laws against treason in this country 
are fairly liberal, and probably deserve no criticism. The re- 
straint with which they were applied after the Civil War did 
much credit to the government of this country. 

The laws against treason and sedition acquire special impor- 
tance in war time. During a war a country is in a position of 
great danger from its external foes. Consequently, it is essen- 
tial that these laws be executed with great rigor upon its inter- 
nal foes, whereas in times of peace it is possible to treat treason- 
able offenses with comparative leniency. But there is also 
danger of these laws being stretched too far in time of war, so 
as to cover criticisms of the policy of government and of the 
men in power, which may be made with the utmost loyalty 
to the country and which may have great utility in exposing 
defects in the conduct of the war by the government. While a 
censorship of information having military value is essential for 
the prosecution of a war, a censorship of opinions under the 
laws against treason is intolerable in a democratic state. 

Political assassination should be suppressed rigorously, as 
has been done when capital punishment has been imposed upon 
the assassins of presidents of the Republic. In similar fashion 
should be repressed other attacks upon life and property for 
political reasons by anarchists, etc. 1 

But there are other limitations of political freedom which 
are not justifiable. It goes without saying that anarchism is 

1 For example, in 1915, a bomb was placed in Saint Patrick's Cathedral, 
New York City, by anarchists. In this case, however, it was disclosed in 
the course of the trial that the police department had used an agent pro- 
vocateur to instigate ignorant and weak-willed young anarchists to make 
this attempt, so that the responsibility for this criminal attempt to blow up 
the Cathedral apparently rested in part upon the police. 

On July 22, 1916, a bomb was thrown at the military preparedness parade 
in San Francisco which killed at least six persons and wounded twenty-five 
or more other persons. (See New York Times, July 23, 1916.) At the time 
of the present writing this case is still being tried in the criminal courts, 
and it is still uncertain as to who was responsible for this bomb outrage. 



460 CRIMINOLOGY 

utterly impracticable and impossible, and that violent attempts 
by anarchists to overthrow the state should be sternly sup- 
pressed. But in this country there has been a tendency to re- 
press unduly the expression of anarchistic opinions and ideas. 
This repression has sometimes been legal and sometimes il- 
legal. However mistaken these opinions and ideas may be, 
there is no justification for suppressing their expression. This 
tendency has gone so far that it has endangered the right of 
asylum for political offenders from other countries, because of 
the laws which have been passed against the admission to this 
country of anarchists and other political offenders. 

There are other limitations upon political freedom which are 
examples of symbolism gone wild under the name of patriotism. 
For example, in the New York penal code it is forbidden to use 
the national or state flag for purposes of advertisement or to 
" publicly mutilate, deface, defile, or defy, trample upon, or cast 
contempt, either by words or act, upon any such flag." (Article 
134.) Under this provision of the penal code an agitator for 
international socialism in New York City who had published a 
cartoon in behalf of internationalism in which the national flag 
was represented was sent to prison for thirty days on June 3, 
1916, for thus desecrating the flag. 1 

In 1916 in Tacoma, Washington, a man was convicted of 
"libelling" a patriotic hero because he had referred to George 
Washington as a " slaveholder and inveterate drinker." 2 

Freedom of speech has also frequently been suppressed il- 
legally in this country. Again and again it has happened that 
the police and sometimes the courts have prevented the propa- 
gation of unpopular views by restricting the right of assemblage 
and in other ways. 3 While the laws against unlawful assembly 
are necessary and desirable in so far as they are directed against 
assemblies for the express purpose of violating the law, they 

1 Case of The State v. Boack White. In March, 191 7, the same defendant 
and several co-defendants were sent to prison in New York City for having 
burned the United States flag in a religious ceremony. 

2 See The New York Times, June 4, 1916. 

3 Numerous cases of unlawful suppression of free speech and free assem- 
blage have been described, as, for example, in J. G. Brooks, Freedom of 
Assemblage and Public Security, in the Papers and Proceedings of the Am. 
Sociological Society, Vol. IX, Chicago, 1915, pp. 11-28; T. Schroeder, Free 
Speech for Radicals, 2d ed., New York, 1916. 



POLITICAL AND EVOLUTIVE CRIMES 46 1 

have frequently been construed as prohibiting assemblies held 
for the purpose of disseminating radical ideas, or assemblies 
which might conceivably result in disorder, though through 
no fault of the organizers of the assembly. 

As a matter of fact, experience has furnished abundant evi- 
dence that when no restrictions are placed upon the rights of 
freedom of speech and freedom of assemblage, except in so far 
as it is necessary to protect the traffic on the public highways 
from interference, there is much less danger of disorder than 
when such restrictions are imposed. Under freedom the wise 
and practicable ideas receive a deserved publicity, while the 
foolish and dangerous ideas are less likely to do harm when those 
who hold them are given an opportunity to blow off steam than 
if they are kept bottled up. This has been true and may be so 
still in Boston, where freedom of speech and of assemblage has 
been tested od the Common. It seems to be true at the present 
time (191 7) in New York, though it has not always been true 
in this city where police commissioners have frequently indulged 
in unlawful suppression of the rights of freedom of speech and of 
assemblage. For many years freedom of speech and of assem- 
blage has been permitted with excellent results on Sunday after- 
noons at Hyde Park in London. 

The Types of Evolutive and Political Criminals 

Let us now consider briefly the traits of the evolutive and 
political criminals. According to political and social conditions, 
any one may become a criminal of this type. Under certain 
conditions a conservative may be such a criminal, under other 
conditions a radical may be the criminal. A monarch is the 
incarnate personification of conservatism, and yet Charles the 
First in England and Louis the Sixteenth in France were be- 
headed as political criminals. Both the religious and the irre- 
ligious may become such criminals. There is perhaps nothing 
in human culture more archaic than religion. And yet under 
the French Revolution the clergy were proscribed as criminals. 

However, as a general rule, the evolutive and political crimi- 
nals belong to the more progressive and radical portion of the 
community. The reason for this is apparent. The conservatives 
are interested mainly if not solely in maintaining the established 



462 CRIMINOLOGY 

order. So that they are not likely to come into conflict with the 
existing laws. It is usually only when a great revolution is 
successful and sweeps the progressives and radicals into power 
that the conservatives become the criminals in the eye of the 
new order. But the progressives and the radicals, on the con- 
trary, are constantly trying to bring about changes, and are, 
therefore, very likely to come into conflict with the existing 
laws. So that, while any kind of person may conceivably at 
some time or place become an evolutive or a political criminal, 
we are justified in assuming that the principal type or types of 
evolutive and political criminals are to be found among the 
progressives and radicals. 

We can distinguish three principal types of evolutive and 
political criminals, namely, the pathological, the emotional, and 
the rational types. Insanity of different sorts and other forms 
of mental morbidity are more or less prevalent among these 
criminals. This is specially true of the regicides or regenticides 
who assassinate monarchs, and the magnicides who kill any 
persons who are in authority or who have attained public 
prominence. It is also true of those who by throwing bombs, 
exploding mines, and in other ways kill innocent people in public 
places. Some of these assassinations are obviously common 
crimes committed by insane criminals. For example, an insane 
person may kill a public official because he is laboring under 
the delusion that he is being persecuted by this official. Or he 
may assassinate a prominent person or throw a bomb in a public 
place in order to attract the attention of the public to himself, 
thus gratifying his inordinate vanity. Or he may commit one 
of these crimes as an indirect method of committing suicide, 
since he has not sufficient physical courage to kill himself. 

But some of these mentally unbalanced criminals doubtless 
are of the political type. This is the case when an insane person 
has, through reading anarchistic and revolutionary literature or 
in some other way, acquired the notion that a monarch or the 
president of a republic or a prime minister or a prominent editor 
is partly or wholly responsible for the woes of mankind, and 
that the most effective method of relieving these woes is to 
assassinate the guilty party. Or an insane person may throw a 
bomb in an opera house or in a restaurant under the delusion 
that he is killing members of the class which is responsible for 



POLITICAL AND EVOLUTIVE CRIMES 463 

human misery. Or he may kill people in a public place regard- 
less of their innocence, or destroy property regardless of its 
ownership, under the delusion that he will thereby precipitate 
the revolution that will bring into being the Utopia which man- 
kind is awaiting. 

Many other examples of the pathological type of evolutive 
criminal might be mentioned, as when a religious delusion leads 
an insane person to practise human sacrifice. The mental 
morbidity of these pathological criminals is readily discovered 
by means of a psychiatric and medical examination. But it is 
usually clearly indicated beforehand in the obvious falsity of 
their ideas, and in the folly of the measures they use to attain 
their ends. Their methods are usually of the utmost violence, 
involving the taking of human life and the destruction of prop- 
erty, and are almost certain to react injuriously upon the cause 
for which they are striving. Furthermore, in some of these 
crimes there may be mixed some of the motives of the common 
criminal, such as vanity, personal spite, the desire to die without 
the courage to kill one's self, etc. 1 

It is impossible to draw a hard and fast line between the 
pathological and the emotional types. It is evident that most 
if not all of the pathological offenders are highly emotional. But 
there are others who also are very emotional, and yet can hardly 
be regarded as pathological. In fact, it is probable that the 
majority of the evolutive and political criminals are of the 
emotional type, without being distinctly pathological. The 
reasons for the predominance of the emotional type can be 
easily discerned. Strong feelings constitute a powerful dynamic 

1 Many writers have described the pathological traits of evolutive and 
political criminals. Nearly every political assassination, bomb outrage, 
and like event has produced a number of such writings which have con- 
tributed to the valuable store of data upon this subject. A number of general 
works also have been published. The following are a few of the general 
and special writings on this subject: — C. Lombroso and R. Laschi, Le crime 
politique et les revolutions, Paris, 1892, 2 vols.; E. Regis, Les regicides dans 
Vhistoire et dans le present, Lyons, 1890; E. C. Spitzka, Regicides, Sane and 
Insane, in the New York Medical Journal, August 15 to September 5, 1903; 
C. F. MacDonald, The Trial, Execution, Autopsy and Mental Status of Leon 
F. Czolgosz, Alias Fred Nieman, The Assassin of President McKinley, in the 
American Journal of Insanity, Vol. LVIII, No. 3, January, 1902; W. Chan- 
ning, The Mental Status of Czolgosz, The Assassin of President McKinley, in 
the American Journal of Insanity, Vol. LIX, No. 2, 1902. 



464 CRIMINOLOGY 

force which may readily impel those possessing them into com- 
mitting these offenses, whereas phlegmatic and calculating 
individuals are more likely to lack this impulse. 

Furthermore, some of the emotions in this type of offender are 
of the sympathetic type. These sympathetic emotions give 
rise to compassion for human misfortunes and a desire to amel- 
iorate them. This desire may become a veritable passion,* and 
thus lead to offenses similar to the common crimes of passion due 
to altruistic feelings. These altruistic common crimes are com- 
mitted in behalf of another individual, as, for example, the crime 
of a mother in behalf of her child, of a lover in behalf of a loved 
one, etc. They entail doing harm to persons other than the 
objects of the altruism, and usually display a lack of social 
consciousness on the part of the criminal. 1 

Many of the evolutive and political offenses also are altruistic 
crimes of passion. But they are committed in the interest of the 
whole or of a considerable portion of society. . There is not the 
same narrow personal element in these offenses which is present 
in the common crimes. Lombroso was so impressed by the 
likeness between many political offenses and crimes of passion 
that he classified the political offender as a subtype under the 
criminal by passion. But, while this similarity doubtless exists, 
it is preferable to classify them separately for the reasons indi- 
cated above. 



1 Vallon and Genil-Perrin have described a number of altruistic crimes of 
the common type. Among these crimes are thieving in behalf of another, 
homicide in the interest of a third person, homicide committed in the sup- 
posed interest of the victim by fanatics and persons suffering from melan- 
cholia and the mania of persecution, euthanasia, indirect automutilation in 
the place of suicide, etc. They point out the anti-social character of these 
crimes in the following words: — 

"Le sentiment altruiste n'est done ni bon ni mauvais. Ce qui est mauvais, 
e'est de ne pas etre capable d'en regler l'exercice; ce qui est bon, e'est de 
1'asservir, comme toutes nos autres tendances, a, notre volonte consci- 
ente. . . . Tout comme l'egoi'sme irrefrene, l'abandon aux impulsions al- 
truistes peut acquerir un caractere antisocial. Nous venons de faire allusion 
a. quelques peches veniels de l'altruisme dont nous pouvons nous rendre 
coupables tous les jours. Mais si nous avons pu en faire comprendre la 
portee, e'est grace a, l'etude des manifestations, a, la fois pathalogiques et 
criminelles, de l'emotion tendre, que nous avons poursuivie dans ce travail." 
(Ch. Vallon and G. Genil-Perrin, Crime et altruisme, in the Arch. (Tanth. 
crim., Vol. XXVIII, 1913, p. 186.) 



POLITICAL AND EVOLUTIVE CRIMES 465 

At the same time it must be borne in mind that some of the 
evolutive and political criminals are intensely individualistic and 
egoistic, and, therefore, to that extent unsocial, if not anti-social. 
In fact, some of their offenses are so egoistic that it becomes a 
serious question whether they should not be regarded as common 
crimes. The only thing that preserves their character as evolu- 
tive crimes is that they are apparently committed in accordance 
with a sincere belief in certain principles of conduct and of social 
organization. 

Both of these emotional types are to be found, for example, 
among the anarchists. Some of the anarchists possess strong 
social feelings, and seem to arrive at their anarchistic philosophy 
from a social point of view. Other anarchists are inordinately 
egoistic and individualistic, and advocate a program which is 
intensely unsocial if not anti-social. Their anarchism apparently 
arises out of a conscious or sub-conscious desire to be free from 
social restraint. These temperamental differences exist even 
when the underlying philosophy of the anarchists is apparently 
the same. However, both of these types of offenders may dis- 
play strong passions indicating the presence of powerful feelings, 
though these may take different directions. 1 

The offenders of the rational type are by far the least nu- 
merous. The reasons for this can be readily discerned. Persons 
in whom the reasoning faculty is highly developed are relatively 
cool and deliberate in their conduct, and do not usually act upon 
the impulse of the moment. Consequently, they are not likely to 
try to bring about changes by means of violence, except as a 
means of last resort, but try usually to accomplish their ends 
peacefully and, so far as possible, within the limits of law and 
order. They are, perhaps, even more prone than persons of the 
emotional type to see the defects in the existing order. But they 
use constructive rather than destructive means to remedy these 
defects. 

It must not be thought, however, that these persons of the 
rational type are lacking in emotions. In many cases their 

1 The anarchists have been described in many books, a few of which I 
will mention here: — E. Sernicoli, L'anarchia e gli anarchici, Milan, 1894, 2 
vols.; E. V. Zenker, Anarchism, New York, 1897; E. Zoccoli, L'anarchia, 
Turin, 1907; P. Latouche, Anarchy, London, 1908; E. A. Vizetelly, The 
Anarchists, London, 191 1. 



466 CRIMINOLOGY 

affective nature is doubtless as fully developed as in persons of 
the emotional type. Their altruistic feelings, their humanitarian 
impulses, and their social consciousness are quite as strong as 
those of the emotional persons. But these affective tendencies 
are guided better by the reason and controlled more effectively 
by the will than in the emotional persons. 

There are, however, times when conditions become so in- 
tolerable that even the most self-controlled persons are driven to 
violate laws in order to bring about changes. At such times 
offenders of the rational type become much more numerous. 
Thus under a brutal autocracy or bureaucratic oligarchy uni- 
versity students become tyrannicides, and many of the political 
offenders are drawn from the educated classes. 1 

I have already stated that there are a few crimes on the 
borderline between common crimes and evolutive crimes. It 
also happens from time to time that a common criminal pretends 
to be an evolutive or political criminal in order to secure im- 
munity from punishment or a lighter penalty. But these cases 
are rare, since such attempts are usually made only by the most 
clever of the professional criminals, and not frequently by them 
since they are liable to acquire thereby an undesirable publicity. 
When such attempts are made by pathological individuals, 
they are either on the borderline or can be easily detected as 
common criminals. 

The Instigation of Political and Evolutive Crimes 

It also happens that some of the alleged evolutive and polit- 
ical crimes are committed as a result of the activities of the 
agents provocateurs. These are police spies who are detailed to 
instigate crimes among persons who are ignorant and suggest- 
ible, and who frequently are mentally unbalanced as well, who 
have acquired a smattering of radical and revolutionary ideas. 
These agents are sent into labor unions, socialist organizations, 
anarchist groups, and wherever these weak individuals may be 
found. It is, of course, incumbent upon the police to watch 
these radical and revolutionary groups in order to repress vio- 

1 Such a situation has existed in modern times in Russia. See, for example, 
E. Tarnowski, Les crimes poliliques en Russie (iqoi-jqoj), in the Arch, 
d'anth. crim., Vol. XXII, 1907, pp. 40-57. 



POLITICAL AND EVOLUTIVE CRIMES 467 

lent attacks upon life and property. But unscrupulous police 
officials will sometimes try to incite members of these groups 
to crime in order to secure the financial rewards and glory re- 
sulting from the repression of these crimes. Wherever there is 
a strongly centralized autocratic and bureaucratic government, 
these spying methods are likely to be used in order to bring 
public condemnation upon the radicals and to intimidate them 
from activity. 1 

But even more sinister than this spying by police agents are 
the activities of a certain type of private detective agency which 
has become prevalent recently, at any rate in this country. 
There is much evidence now available to prove that these agen- 
cies are frequently hired by employers, capitalists, and other 
wealthy individuals to instigate crime among radicals, to spy 
upon agitators and to try to secure their conviction in criminal 
courts, to furnish special guards at times of labor disturbances, 
to act as strike-breakers, etc. 2 All of these activities are well 

1 The activities of the agents provocateurs in various European countries 
have been described in many books, as, for example, the following: — P. 
Kropotkin, The Terror in Russia, London, 1909; A. Bebel, My Life, Chicago, 
1912; G. J. Holyoake, Sixty Years of an Agitator's Life, London, 1900. 

2 Cf. R. Hunter, Violence and the Labor Movement, New York, 1914. Hunter 
gives a good description of the activities of these private detective bureaus 
in this country, especially in Chapter XI entitled "The Oldest Anarchism." 
He says that "to-day there exist in the United States thousands of so-called 
detective bureaus where armed men can be employed to do the bidding of 
any wealthy individual. While, no doubt, there are agencies that conduct 
a thoroughly legitimate business, there are unquestionably numerous 
agencies in this country where one may employ thugs, thieves, incendiaries, 
dynamiters, perjurers, jury-fixers, manufacturers of evidence, strike-breakers 
and murderers. A regularly established commerce exists, which enables a 
rich man, without great difficulty or peril, to hire abandoned criminals, 
who, for certain prices, will undertake to execute any crime. If one can 
afford it, one may have always at hand a body of highwaymen or a small 
private army. Such a commerce as this was no doubt necessary and proper 
in the Middle Ages and would no doubt be necessary and proper in a state 
of anarchy, but when individuals are allowed to employ private police, 
armies, thugs, and assassins in a country which possesses a regularly estab- 
lished state, courts, laws, military forces, and police, the traffic constitutes 
a menace as alarming as the Black Hand, the Camorra, or the Mafia. The 
story of these hired terrorists and of this ancient anarchy revived surpasses 
in cold-blooded criminality any other thing known in modern history. That 
rich and powerful patrons should be allowed to purchase in the market poor 
and desperate criminals eager to commit any crime on the calendar for a 



468 CRIMINOLOGY 

calculated to lead directly or indirectly to many common crimes, 
while by increasing the incentives to violence on the part of 
radical groups and the workers and by aggravating the bitter- 
ness of feeling between the different classes they increase the 
number of evolutive and political crimes. These activities both 
of the police agents and of the private agencies stimulate crime, 
hinder social progress, and constitute a grave menace to free 
institutions. 

The Treatment oe Evolutive Crime 

The preceding exposition of the nature of evolutive and polit- 
ical crime and of the traits of those who commit these offenses 
has shown the importance of dealing in an appropriate manner 
with this type of crime and of criminal. Special provision should 
be made in law and procedure for distinguishing these offenses 
from ordinary crimes. As I have already pointed out in earlier 
chapters, there should be a special tribunal for the trial of these 
offenders, and special methods of restraining and punishing 
them. Up to the present time there has been a lamentable 
failure to do any of these things in this country. 

few dollars, is one of the most amazing and incredible anachronisms of a 
too self-complaisant Republic." {Op. tit., pp. 281-282.) 

The ex-convicts and thugs employed by these detective agencies have 
been used in many recent labor disturbances, such as the strikes in the 
West Virginia and the Colorado mining districts. 



CHAPTER XXIX 
EVOLUTIVE CRIME AND SOCIAL READJUSTMENT 

The significance of evolutive crime — Religious restrictions upon freedom — 
Christianity as the national religion — The laws against blasphemy 
and profanity — Sabbatarian legislation — Religious discrimination 
in military conscription — Sumptuary and economic legislation — 
The law against suicide — Repression in matters of sex and reproduc- 
tion — The conservatism of the human mind — The prevention of 
evolutive crime: flexibility in the organization of society — Evolutive 
crime and democracy. 

Evolutive crimes have been committed ever since the be- 
ginning of governments and law. Custom, public opinion, 
religious beliefs, moral ideas, and laws at any given time and 
place prescribe certain forms of conduct, and a more or less fixed 
mode of living. These forces maintain the prevailing regime, 
and invariably present much opposition to change. Conse- 
quently, in order to bring about change it frequently becomes 
necessary for some individuals to defy these forces for perman- 
ence, and in some cases this defiance involves violation of the 
law. So that evolutive crime is an inevitable concomitant of 
social change and progress. 

The Significance of Evolutive Crime 

In fact, the emergence and treatment of evolutive crime epito- 
mize in a measure the perennial conflict between the forces for 
change and the forces for permanence in social evolution. The 
repression of this type of crime frequently comes from tyrants, 
monarchs, oligarchies, and small ruling classes to whose interest 
it is to preserve the existing system. Consequently, this kind 
of repression often results in tyrannicide and regicide. But even 
when no tyrant or oligarchy happens to be dominant, the widely 
diffused conservative influences of custom, religion, and morality 
as embodied in the law are certain to furnish more or less re- 
pression. So that the repressive forces are always present. 



47° CRIMINOLOGY 

In addition to being inevitable, the repression of evolutive 
crime is to a certain extent useful. It is useful, in the first 
place, because law and order in general must be maintained in 
the long run, whereas if there was no repression whatever, a 
state of anarchy would soon arise. In the second place, at least 
a small amount of repression is usually of value for the pres- 
ervation of the existing social order, because, while no social 
system is ideal, it has rarely ever been feasible to change im- 
mediately from one system to another. 

On the other hand, such repression may readily overstep the 
bounds of social utility, and, as a matter of fact, this happens 
frequently. Excessive repression almost invariably reacts un- 
favorably upon the existing system, and is liable to create an 
intolerable situation in which temporary disorder becomes pref- 
erable to order. Then comes a sudden explosion in the form 
of a revolt, revolution, civil war, coup d'etat, etc., which over- 
throws the repressive forces, and brings about changes in the 
social system. 

So that repression of evolutive crime has, on the one hand, 
been useful in checking foolish attempts at change. These 
attempts are foolish in some cases because the conditions are 
not yet ripe for the proposed changes, and in other cases because 
the attempted changes are hopeless of attainment under any 
conditions. On the other hand, this repression has hindered 
social progress considerably by putting obstacles in the way of 
desirable changes which were feasible. 

It is very important that the public should understand clearly 
the distinction between evolutive and common crimes, and 
should recognize the evolutive crimes which are most preva- 
lent in the present stage of social evolution. A general under- 
standing of this distinction would help greatly -in deciding how 
much repression of evolutive crime is desirable, and what are 
the wisest methods of dealing with evolutive criminals. 

Religious Restrictions upon Freedom 

In this chapter I shall describe briefly some of the laws which 
suppress evolutive crimes in this country, and a few recent in- 
stances of such suppression. Some of these laws are necessary, 
and their enforcement is justifiable. Other laws are absolutely 



EVOLUTIVE CRIME AND SOCIAL READJUSTMENT 47 1 

unjustifiable. Furthermore, in some cases suppression has 
taken place without even a legal sanction. 

Nothing in human culture is more archaic than religion, be- 
cause it professes to teach absolute truth, and to inculcate im- 
mutable rules of conduct. Consequently, religion has always 
been a powerful force for repressive legislation, and therefore 
a prolific cause of evolutive criminality. Even in this "land of 
liberty" one religion has become an official institution to such 
an extent as to give rise to many evolutive crimes. 

Freedom in matters of religion must necessarily include the 
right to express one's opinions about religion. Laws which pro- 
hibit any one from questioning the existence of a god, from deny- 
ing the divinity of Jesus, or from giving expression to any other 
religious or irreligious belief are gross violations of this right. 
Indeed, this right should be held so inviolable that it would not 
be abridged even indirectly. And yet this occurs every time the 
Christian religion is officially recognized as the national religion 
of this country. It is obvious that a genuine and consistent 
application of the principle of religious freedom, which is em- 
bodied in our Constitution, requires that there should be no 
official or national religion branded upon every citizen, but that 
each citizen should be left free to choose his own religion for 
himself, or to remain irreligious. 

Christianity as the National Religion 

Christianity has been officially recognized as the national 
religion in many ways. This happens every time that an official 
function is accompanied by a religious ceremony, as, for example, 
when Congress is opened with prayer. It is recognized in 
Thanksgiving Day proclamations by the President and in many 
other state documents. But the United States has been judi- 
cially declared to be a "Christian" country in numerous de- 
cisions of many of the highest courts of the land, a few of which 
I will cite. 

In order to understand the historical background of these 
decisions it will be well to recall a few facts of English legal 
history. Early in the development of English law the Christian 
Scriptures came to be read into the common law by a curious 
process which has been described in numerous historical works 



47 2 CRIMINOLOGY 

and in the writings of Thomas Jefferson, 1 but which there is not 
the space to describe here. As a result of this singular occur- 
rence, Christianity was recognized in many 'judicial decisions as 
a part of the English law. About the seventeenth century Hale 
stated that " Christianity is parcel of the laws of England," 
(i Ventr. 293, 3 Keb. 607). In 1763 Blackstone said that 
11 Christianity is part of the laws of England," {Commentaries, 
IV, 59). In 1767 Lord Mansfield, in Evans' case, said that "the 
essential principles of revealed religion are part of the common 
law." As a consequence of these decisions, blasphemy and pro- 
fanity came to be regarded as offenses at common law. 

The English common law has been incorporated more or less fully 
into the law of every state except Louisiana. Consequently, these 
English decisions have furnished precedents for the American deci- 
sions on this point. For example, the Supreme Court of the United 
States declared in the case of Vidal v. Guard's Executors (2 How. 127, 
198), that "it is also said, and truly, that the Christian religion is a 
part of the common law of Pennsylvania." In the case of the Church 
oj the Holy Trinity v. U. S. (Oct. Term, 1891, U. S. Reports, Vol. 143), 
the decision of the Supreme Court, prepared by Justice Brewer, re- 
cites many facts alleged to be indications that this is a Christian 
country, and then concludes as follows: — "These, and many other 
matters which might be noticed, add a volume of unofficial declara- 
tions to the mass of organic utterances that this is a Christian nation." 

In numerous blasphemy cases similar decisions have been made, as 
will be illustrated in the two following cases from state courts. In 
New York in The People v. Ruggles (8 Johns. 29, 294, 295), Chancellor 
Kent rendered the following decision: — -"The people of this state, 
in common with the people of this country, profess the general doc- 
trines of Christianity, as the rule of their faith and practice; and to 
scandalize the author of these doctrines is not only, in a religious 
point of view, extremely impious, but, even in respect to the obliga- 
tions due to society, is a gross violation of decency and good order." 
In Delaware in The State v. Thomas Jefferson Chandler (General 
Sessions, May Term, 1837, Harrington's Reports, Vol. 2), the follow- 
ing assertion was made: — "We know, not only from the oaths that 
are administered by our authority to witnesses and jurors, but from 
that evidence to which every man may resort beyond these walls, that 
the religion of the people of Delaware is christian." 

^Jefferson's description of this process is to be found in any complete 
edition of his writings. A brief summary of it is given in The Jefersonian 
Cyclopedia, edited by J. P. Foley, New York, 1900, pp. 161-162. 



EVOLUTIVE CRIME AND SOCIAL READJUSTMENT 473 

It is interesting to note that some of these judges have apparently 
had qualms of conscience over these decisions, or at least misgivings 
as to their effect upon religious freedom, for they have averred that in 
recognizing Christianity as the official and established religion they 
were not opposing religious tolerance and freedom. Thus in Penn- 
sylvania in Updegraph v. The Commonwealth (n S. and R. 394, 400), 
the court spoke as follows: — "Christianity, general Christianity, is, 
and always has been, apart of the common law of Pennsylvania; . . . 
not Christianity with an established church, and tithes, and spiritual 
courts; but Christianity with liberty of conscience to all men." In 
New York in Lindenmuller v. The People (N. Y. Supreme Court, 
February, 1861, Barbour's S. C. Rep., Vol. ^3), the plaintiff in error 
had been convicted of violating the sabbath law by giving a theatrical 
performance on Sunday. The conviction was sustained and in render- 
ing its decision the court spoke as follows: — " Religious tolerance is 
entirely consistent with a recognized religion. Christianity may be 
conceded to be the established religion, to the qualified extent men- 
tioned, while perfect civil and political equality, with freedom of 
conscience and religious preference, is secured to individuals of every 
other creed and profession." 

Enough decisions have been cited to indicate that in speaking 
of this country as a " Christian" nation the courts have not in- 
tended merely to use a descriptive phrase, which might be justi- 
fied on the ground that the great majority of the inhabitants are 
Christian. On the contrary, it is evident that they have fully 
intended to establish Christianity as the official, national religion, 
in whose favor the executive and legislative branches of the 
government may discriminate when they so desire. But the 
courts have apparently not intended to establish any Christian 
church as the official state church. 

The Constitution of the United States and the State con- 
stitutions guarantee religious liberty. 1 It is, therefore, contrary 
to the spirit if not to the letter of this constitutional provision 

1 The first amendment to the Federal Constitution reads as follows: — 

"Congress shall make no law respecting an establishment of religion, or 
prohibiting the free exercise thereof; or abridging the freedom of speech, 
or of the press; or the right of the people peaceably to assemble, and to 
petition the Government for a redress of grievances." 

Article I, Section 3 of the New York State Constitution reads in part as 
follows: — 

"The free exercise and enjoyment of religious profession and worship, 
without discrimination or preference, shall forever be allowed in this State 
to all mankind." 



474 CRIMINOLOGY 

for the executive, the legislative, or the judicial branch of the 
government to discriminate in any way in favor of any religion. 
Especially grave is this discrimination when the courts declare 
this to be a "Christian" nation. By this astonishing piece 
of affrontery they indirectly, to say the least, violated the con- 
stitutional right of religious freedom which it is their special 
duty to uphold. They have thereby insulted the many non- 
Christian religious citizens and the irreligious citizens of this 
country who should vehemently resent this gratuitous insult. * 

Unfortunately it is true that in nearly every country in the 
world some religion is officially recognized or is given a prefer- 
ence by the government. But there can be the least excuse for 
this in the greatest republic in the world. So far as my personal 
observation extends, the French government is the only demo- 
cratic government which consistently refrains from recognizing 
any religion as the official or national religion. 

The Laws against Blasphemy and Profanity 

The way in which religion restricts the freedom of speech is 
clearly exemplified in the laws against blasphemy. 2 In the 
days when it was generally believed that the blasphemous utter- 
ances of an individual would bring divine punishment not only 

1 The late Justice Brewer of the U. S. Supreme Court repeatedly misused 
the great power and influence of his high judicial office by asserting in public 
decisions and private utterances that this is a "Christian" nation, as, for 
example, in the following statement: — "It is in that sense as truly a Chris- 
tian nation as is England with its Established Church, or as is Turkey a 
Mohammedan nation with the Koran as its officially declared sacred book." 
(D. J. Brewer, American Citizenship, New York, 1909, p. 21.) 

1 am glad to be able to say that a Jewish non-Christian has had the cour- 
age and the intelligence to make a forceful and convincing reply to Brewer's 
implied aspersions upon all non-Christian citizens of this country. (Isaac 
Hassler, A Reply to Justice Brewer's Lectures " The United States a Christian 
Nation,'' 1 Philadelphia, 1908.) 

2 Blasphemy has been defined by an American legal authority as follows: 
"Blasphemy is any reproach, oral or written, wilfully cast upon God, 

his name, attributes, or religion. Any words calculated and designed to 
impair and destroy the reverence, respect, and confidence, due to God as 
the creator, governor, and judge of the world, such as a denial of his being 
or providence, or any profane and malicious scoffing at the Holy Scriptures, 
exposing them to contempt and ridicule, or any other declarations which 
tend to subvert religion and piety, are blasphemy. Profanity consists in 
the use of words which import an imprecation of future divine vengeance." 
(W. C. Robinson, Elementary Law, Boston, 1882, pp. 298-299.) 



EVOLUTIVE CRIME AND SOCIAL READJUSTMENT 475 

upon himself but upon his community as well, there seemed to 
be ample social justification for penalizing blasphemy. But 
the doctrine of individual responsibility for conduct is now 
firmly established, and there are few if any intelligent persons 
who believe that any one besides the blasphemer himself can 
suffer for his sin. Indeed, some of the most devout votaries of 
theistic religion have reached the conclusion that the deity can 
be safely left alone to enforce the "divine" law. 1 To the im- 
partial and unprejudiced mind of the scientist and of any other 
person who is undisturbed by any theological prepossessions 
it appears wholly reasonable to assume that, if the deity is in- 
deed omnipotent, as is alleged by his devotees, he can scarcely 
need the puny assistance of man in performing his police work. 
So that the human and social justification for the suppression 
of blasphemy disappears. 

It is doubtless true that profanity has frequently been penal- 
ized by the courts partly because it has been regarded as symp- 
tomatic of excited feelings which might lead to acts of violence 
dangerous to other persons. But while a court may be justified 
in penalizing a person who utters sentiments which menace 
the welfare and safety of others, there is no justification for 
punishing profanity on religious grounds. So that the law 
should provide and a court should specify that in such a case a 
threat is being penalized, and not profanity. 

There is even less justification when a court punishes pro- 
fanity partly as a violation of "good taste." In such a case 
profanity is penalized as an offense against the persons whose 
standard of taste proscribes profanity as being a form of "bad 
taste." Few things in human culture are more indefinable and 
more mutable than standards of taste. Consequently, a stand- 
ard of taste is one of the last things that a court should attempt 
to enforce, and it is a dangerous abuse of its power when it does 
so. So that while profanity may very well be in bad taste under 
many circumstances, because it signifies an undue lack of ap- 

1 For example, Patterson, who displays a profound faith in a "divine" 
law, insists that it is not the function of man to enforce this law. "The 
municipal law does not and cannot, and it would be impious for it to at- 
tempt to, enforce most parts of the divine law, and it can only punish in 
an imperfect manner the violation of a small part of it." (James Patterson, 
Commentaries on the Liberty of the Subject and the Laws of England Relating 
to the Security of the Person, London, 1877, Vol. I, p. 114.) 



476 CRIMINOLOGY 

preciation for the feelings of others, the penal law is not the 
appropriate agency for restraining it. 

There can be no question about the right of every one to use 
as expletives any words he chooses, so long as these words do 
not imply slanderous statements about any other living persons. 
As a matter of fact, profanity frequently has great psychological 
value in that it furnishes an outlet for strong feelings which 
might otherwise be manifested in an injurious fashion. Com- 
monplace words cannot perform this function, so that words 
purported to have a sacred significance must be used. These 
words possess great cathartic value in furnishing a fairly in- 
nocuous vent for strong feelings. 

But the most dangerous feature of the laws against blasphemy 
is that they may be used to limit the freedom of speech and of 
belief with respect to questions of great importance. As a 
matter of fact, these laws have been invoked more or less fre- 
quently by the courts to limit the freedom of discussion with 
respect to religious and so-called religious matters. As recently 
as the year 191 6 an obsolete law was revived in Connecticut 
for the purpose of prosecuting and convicting a man who had 
criticized the character of the Hebrew Jehovah as painted in 
the Old Testament. 1 Disrespectful mention of God, Jesus, 
and other alleged supernatural beings is prohibited in various 
parts of this country, in spite of the fact that these beings are 
reputed to be strong enough to defend and avenge themselves. 
In this fashion is violated the fundamental and inalienable 
human right of free speech, and the courts are furnished the 
power to interfere, if they so desire, with the spread of liberal 
ideas and the refutation of archaic beliefs. 

1 The State of Connecticut v. Mockus. The defendant was prosecuted in 
Waterbury, Connecticut, under the following law which was originally 
enacted in 1642: — General Statutes of Connecticut, Section 1323 — "Every 
person who shall blaspheme against God, either of the persons of the Holy 
Trinity, the Christian religion, or the Holy Scriptures, shall be fined not 
more than $100 or imprisoned in a jail not more than one year, and may 
also be bound to his good behavior." A. D. 1642-1821, Revised, 188, Sec- 
tion 1535. 

Under this "blue law" he was convicted and sentenced in August, 1916, 
to serve ten days in jail and to give a bond of $1,000 to guarantee good be- 
havior for six months. The case was appealed and has not been decided at 
the present time of writing (191 7). 



EVOLUTIVE CRIME AND SOCIAL READJUSTMENT 477 

Even in England where the right of free speech has been 
carefully safeguarded, the law provides that any one "who 
having been educated in or at any time having made profession 
of, the Christian religion within this realm, by writing, printing, 
teaching, or advised speaking, denies the Christian religion 
to be true, or the holy scriptures of the Old and New Testament 
to be of Divine authority" x is guilty of a misdemeanor. Nor is 
the law against blasphemy in England a dead letter, as is pointed 
by an English historian: — "It was commonly supposed that 
the Blasphemy laws, though unrepealed, were a dead letter. 
But since December, 191 1, half a dozen persons have been 
imprisoned for this offence." 2 

Sabbatarian Legislation 

There are many other direct or indirect violations of the prin- 
ciple of religious freedom, in the form of discriminations in favor 
of religion and of Christianity in particular and against irreligion 
and the irreligious. For example, in the New York penal code 
disturbing religious meetings is made a special crime, it is for- 
bidden to carry on horse racing within two miles of a religious 
meeting place, it is forbidden to represent the "Divine Person" 
by living characters, etc. 3 In 1914 in New York City a man was 
sent to prison for six months because he disturbed a religious 
meeting by uttering some radical sentiments, though he did 
nothing to disturb the peace. In the same year in New York 
City another man was sentenced to prison for one year because 
he led a group of unemployed men into a church in search of 
assistance. Both of the judges who imposed these sentences 
indicated by their utterances that they regarded the guilt of 
these offenders as greatly exacerbated by the fact that they had 
invaded churches, and that consequently they were increasing 
the penalties accordingly. 

Perhaps the most flagrant violation of religious freedom in 
this country is in the form of Sabbatarian legislation. Many 
kinds of conduct are forbidden on Sunday. For example, in 
the New York penal code all labor, "excepting the works of ne- 

l J. F. Stephen, A Digest of the Criminal Law, London, 1904, p. 127, 
Art. 181. 

2 J. B. Bury, A History of Freedom of Thought, London, 1913, p. 243. 

3 Article 186. See Cook's Criminal Code, Albany, 1916. 



478 CRIMINOLOGY 

cessity and charity," is prohibited on Sunday; public sports are 
prohibited on Sunday; theatrical performances are prohibited 
on Sunday; barbering is prohibited on Sunday, with certain ex- 
ceptions; etc. 1 

Now it goes without saying that a day of rest once a week, if 
not even more frequently, is desirable for every one, and should 
be guaranteed by the law to all persons who cannot secure it 
otherwise. It was a recognition of this fact that led to the wise 
French law of the repos hebdomadaire (weekly rest) enacted in 
1906. 2 But it is not essential that this day of rest should come 
on Sunday for all persons. Nor is it necessary to forbid the 
doing of anything on Sunday, so long as every person is assured 
of his day of rest. 

In this country a recognition of the need of a day of rest has 
doubtless been one of the motives back of Sabbatarian legisla- 
tion. But the religious motive has probably been much more 
powerful. This is revealed both by the pious wording of the 
laws and also by their nature. If the day of rest was the sole 
motive of the legislation, it would not be required that all or as 
many as possible should desist from work on Sunday. If the 
sole motive of the legislation was to make Sunday a day of rest 
and recreation, it would not be necessary to prohibit public 
sports, theatrical performances, etc. In fact, these activities 
constitute a valuable addition to Sunday as a day of rest and 
recreation. These prohibitions are, as a matter of fact, rem- 
iniscences of taboos imposed upon certain days for magical and 
religious reasons, from one of which days Sunday has been 
derived. 3 It is time that a purely secular law of the weekly rest 
be substituted for our present Hebraic and Christian Sabbatarian 
legislation. 

Religious Discrimination in Military Conscription 

A recent instance of discrimination in favor of religion and the 
religious against the irreligious is to be found in the "Selective 

1 Article 192. 

2 For a thoroughgoing description of this law, see, C. Berthorriieu, Le 
repos hebdomadaire, Paris, 1914. 

3 For a scholarly discussion of the derivation of Sunday, see, H. Webster, 
Rest Days, New York, 19 16. See also, E. Westermarck, The Origin and 
Development of the Moral Ideas, London, 1908, Vol. II, pp. 286-289. 



EVOLUTIVE CRIME AND SOCIAL READJUSTMENT 479 

Draft Law" of 1917. In this law it is provided that members of 
"any well-recognized religious sect or organization organized 
and existent on May 18, 19 17, and whose then existing creed or 
principles forbade its members to participate in war in any form 
and whose religious convictions are against war or participation 
therein, in accordance with the creed or principles of said re- 
ligious organization," should be exempted from military service. 
(Quoted in the New York Times, July 15, 191 7.) 

In other words, the religious objectors to military service be- 
longing to an established church were to be exempted, while 
the irreligious objectors, however conscientious they might be, 
and the religious objectors who did not happen to belong to an 
organized church were not to be exempted. While it is very 
essential at a time of great national peril that the conscientious 
objectors to military service should not be encouraged, and espe- 
cially that the shirkers who try to hide under the cloak of con- 
scientious scruples should be baffled; it is nevertheless grossly 
unjust to discriminate in favor of a few religious sects. It would 
have been better to exempt no conscientious objectors than to 
exempt only the religious objectors. 

The draft law of 191 7 also exempted regular or duly ordained 
ministers of religion and students of divinity. While it is essen- 
tial to exempt workers engaged in industries necessary to the 
national existence and the successful prosecution of the war, 
the priestly class is one of the least needed of all professions at 
all times and can be dispensed with most easily at a time of 
national stress and peril. So that this exemption is obviously a 
discrimination in favor of religion. 

Sumptuary and Economic Legislation 

There are comparatively few sumptuary laws in any civilized 
country today. Most sumptuary legislation is utterly unjus- 
tifiable. The only possible exceptions are the prohibitions 
against the use of deleterious substances, such as alcohol, the 
narcotic and hypnotic drugs, etc., which unquestionably are 
doing human beings a vast amount of injury. But aside from 
a few such exceptions, people should be left free to eat, sleep, 
and clothe themselves as their own judgment and taste dictate, 
and not according to the dicta of legislators and judges. 



480 CRIMINOLOGY 

There is much limitation of economic freedom, though there 
is great difference of opinion as to what constitutes economic 
freedom. According to the laissez faire school economic freedom 
consists in placing no restriction whatsoever upon competition. 
It is the application of this principle which, in a large measure, 
has led to the present capitalistic system. According to the 
socialists economic freedom can be attained only by the organiza- 
tion of all economic activities by the state, so that each individual 
will be given an equal opportunity with all others. Neither of 
these forms of economic freedom exists at present. So that, 
whichever view we choose to take, we have reason to believe 
that there is much limitation upon economic freedom. 

Inasmuch as it is very difficult to define economic freedom, it 
is difficult to determine what limitations upon it are justifiable. 
The most that I can say here is that freedom in the economic 
world can in all probability be attained and maintained most 
effectively by means of a form of democracy akin to that in the 
political world. At any rate, there is much reason to believe 
that the economic freedom of the laissez-faire school is in the main 
a spurious form of freedom which leads very soon to some of the 
worst forms of bondage. So that repression, or, to say the least, 
restriction, of such things as speculation, monopolies, some forms 
of competition, etc., is probably justifiable. 

Offenses are committed in connection with economic move- 
ments which are justly suppressed. For example, in 1892 
Alexander Berkman tried to assassinate Henry C. Frick, head 
of the Carnegie Steel Company in Pittsburgh, because of Frick's 
activities in attempting to defeat the Homestead strike. Berk- 
man's intentions probably were good, but his methods were very 
reprehensible. Consequently, he spent about fourteen years in 
prison on account of the attempted assassination. 1 

In 191 1 and 191 2 about forty labor leaders were sent to prison 
for dynamiting a large amount of property and destroying a 
number of lives in the effort to injure employers against whom 
they had grudges because they maintained an open shop or for 
some other reason. Among these were the notorious McNamara 
brothers who were sent to prison in California for long terms, 
J. B. McNamara for life and J. J. McNamara for fifteen years, 

1 See, for his own account of this act, Alexander Berkman, Prison Memoirs 
of an Anarchist, New York, 191 2. 



EVOLUTIVE CRIME AND SOCIAL READJUSTMENT 48 1 

for blowing up the Los Angeles Times building and killing 
twenty-one persons. 1 It is difficult to determine whether the 
McNamaras were genuine evolutive offenders or nothing more 
than common criminals. In either case, severe punishment was 
the only kind of penal treatment which could be justly meted 
out to them. 

On the other hand, legislation, court injunctions, and police 
measures have frequently been used to prevent workingmen from 
striking, and to check other economic movements, such as 
socialism, the single tax, etc. It goes without saying that there 
can be no justification for such repression when these movements 
are being carried on in an orderly fashion. 

The Law Against Suicide 

While it is desirable to discourage suicide as much as possible 
by indirect means, there can be no possible justification for 
penalizing any one for attempting to destroy his own life, since 
there could be no right more fundamental and more inalienable 
than the right to dispose of one's own life. And yet suicide is 
penalized practically everywhere. For example, the New York 
penal code specifies that "every person guilty of attempting 
suicide is guilty of felony, punishable by imprisonment in a 
state prison not exceeding two years, or by a fine not exceeding 
one thousand dollars." (Article 202.) 

The punishment of attempted suicide is based in large part 
upon the theological notion that only God has the right to take 
away life which he is alleged to give. But it is also partly for 
the prevention of suicide. For this purpose it is a grossly stupid 
measure. It can obviously be of no avail whatsoever in deterring 
any one so desperate as to wish to kill himself. It may, indeed, 
increase the number of suicides by driving those who are con- 
templating suicide to adopt more certain methods of killing 
themselves in order to avoid the penalty prescribed for those 
w T ho fail in the attempt, but which obviously cannot be inflicted 
upon those who succeed. Punishment may sometimes be jus- 
tifiable for trying to avoid moral obligations, where an attempt 
at suicide was obviously for that purpose. But punishment for 
suicide itself can never be justified. 

1 See W. J. Burns, The Masked War, New York, 1913. 



482 CRIMINOLOGY 

1 do not mean to imply, however, that society does not have 
the right to take life, as in capital punishment, or to endanger 
life, as by means of military conscription in time of war, when 
the safety of society imperatively demands it. It goes without 
saying that the fundamental right of the individual to his own 
life must give way in some cases to the welfare of society. 

Repression in Matters of Sex and Reproduction 

There is much limitation of freedom in sex relations. This is 
well illustrated in the laws against fornication, adultery, bigamy, 
etc., and in the laws enforcing the existing type of marriage, and 
restricting and sometimes absolutely prohibiting divorce. 
Freedom in matters of reproduction is also limited. Rarely if 
ever is the attempt made to force reproduction. But throughout 
a large part of the civilized world there is repressive legislation 
against the use of measures for the prevention and control of 
reproduction. Furthermore, the public discussion of sex is pro- 
hibited to a large extent by the laws against obscenity. 

There is not the space to discuss at length these restrictions 
in matters of sex and reproduction. Suffice it to say that sex 
relations have varied greatly in the past and are changing con- 
siderably at the present time. There is ample evidence that 
artificial regulation of reproduction is greatly needed by society, 
because of the danger of relative over-population. 1 So that 
there is no justification for most of these penal restrictions, as, 
for example, the laws against fornication, adultery, and birth 
control. Furthermore, while some forms of obscenity may 
violate good taste, the laws against obscenity grossly violate the 
freedom of speech, and have frequently been used to suppress 
both works of art and scientific treatises which deal with sex. 2 

1 1 have presented some of this evidence in my Poverty and Social Progress, 
New York, 1916. See especially Chapter XIII entitled "Population and 
Poverty." 

2 Theodore Schroeder has described many instances of such suppression 
in his "Obscene" Literature and Constitutional Law, New York, 1911. He 
points out that the censorship which has arisen uncler the laws against ob- 
scenity has prevented the publication of many useful scientific books. "The 
most injurious part of this censorship, however, lies not in the things that 
have been suppressed, as against the venturesome few who dare to take a 
chance on the censorship, but rather in the innumerable books that have 
remained unwritten because modest and wise scientists do not care to spend 



evolutive crime and social readjustment 483 

The Conservatism of the Human Mind 

Before closing this chapter I wish to discuss briefly the ques- 
tion as to the extent to which evolutive crime can be lessened 
and eliminated. Freedom of speech and of publication would 
eliminate many evolutive crimes, for a large proportion of these 
crimes are due to the restrictions upon freedom of speech. It is 
conceivable that such freedom will become possible, with the 
few exceptions which have been mentioned, namely, the pro- 
hibitions against slander and libel, against fraudulent state- 
ments, and against direct incitements to crime. It would then 
be possible to propose, discuss, and advocate any changes which 
seemed desirable to any one, and thus prepare the way in a 
peaceful manner for their ultimate adoption or rejection as 
seemed best to the majority. 

But while freedom of speech will doubtless increase greatly 
with the progress of civilization, it is not certain that it will 
ever escape a limitation which arises out of a well known human 
trait. It is unfortunately true that the great majority, owing to 
mental inertia, are unwilling to expend the effort necessary to 
assimilate new ideas, but, on the contrary, display a passionate 
devotion to generally accepted ideas. Consequently, it is to be 
feared that those who propose and advocate new ideas will 
always suffer a certain amount of persecution at the hands of 
the majority. It is possible that all legal restrictions upon free 
speech will disappear eventually. But extra-legal restrictions 
will doubtless always remain in the forms of the persecution of 
and discrimination against those who advocate new ideas and 
agitate for changes in the organization of society. 

The Prevention of Evolutive Crime 

The prevention of evolutive crime depends mainly upon the 
development of a political, social, and economic organization 
which is sufficiently flexible to make changes easy without at 
the same time leading to disorder. Evolutive crime will be 

their time in taking even a little chance of coming into conflict with an un- 
certain statute, arbitrarily administered by laymen to the medical profes- 
sion, in which profession are many not over-wise and sometimes fanatical 
zealots in the interest of that asceticism which is the crowning evil of the 
theology of sex." {Op. cit., p. 73.) 



484 CRIMINOLOGY 

eliminated to the extent that such an organization comes into 
being. It is doubtful if such an organization can ever be at- 
tained in an ideal form. But human society seems to be ap- 
proximating it more and more closely with the progress of 
civilization. 

At any rate, this is true of political organization. There has 
been a distinct tendency in this direction through the develop- 
ment of constitutional and democratic government. A de- 
mocracy is bound to uphold, in the long run, the rights of the 
individual, for the source of authority in a democracy is, in the 
last analysis, in the individuals who constitute the democracy. 
Consequently, the constitutions of all democratic states guar- 
antee more or less fully the rights of free speech, of free press, of 
freedom of belief, and of free assemblage. Unfortunately these 
rights are frequently violated in practise. 

But even the modern democratic, constitutional government is 
not so flexible as it might be, and as would be desirable. This is 
lamentably true in this country which is supposed to lead the 
world in its democratic and republican institutions. It is 
necessary merely to refer to the extreme difficulty of amending 
the United States Constitution to reveal the degree of rigidity in 
our political system. In fact, this difficulty alone is to a large 
extent at the bottom of the rigidity in our governmental system, 
for if it were easier to amend the Constitution the whole system 
would become more flexible. 1 

Partly as a result of the rigidity of the Constitution, as well as 
because of the great powers given to them by the Constitution, 

1 The rigidity and the consequent dangers of our constitutional system 
are periodically revealed in our presidential elections. It is a notorious fact 
that in two elections, in 1876 and in 1888, the candidates who received a 
plurality of the popular vote did not receive a majority of the votes cast 
in the electoral college. Consequently, the minority candidates were seated 
in the presidential chair. In 1876, this injustice nearly led to civil war, and 
there is danger of this happening after each election. In 1916 the candidate 
who received a plurality of the popular vote nearly failed to receive a ma- 
jority of the votes cast in the electoral college. And yet it is almost im- 
possible to change the method of electing the president because of the dif- 
ficulty of amending the Constitution. . 

The same difficulty stands in the way of many other political changes 
which should be made because of the great transformation in economic 
and social conditions which has taken place since the Constitution was 
adopted. 



EVOLUTIVE CRIME AND SOCIAL READJUSTMENT 485 

the courts have acquired an enormous amount of power in this 
country. By construing it liberally they have sometimes re- 
lieved somewhat the rigidity of the Constitution. But be- 
cause of the nature of the training and the class consciousness 
of most of the judges they have also served as serious obstacles 
to change. 1 The courts have frequently used their power 
politically, in effect, to legislate. In many cases their attitude 
has been reactionary, and has been manifestly in the interest of 
the upper classes. These facts doubtless account for the recent 
agitation to check the courts by means of the popular recall of 
judicial decisions and of judges. It is indeed dangerous to a 
country when its courts acquire so great a power, and such a 
situation contains within it the seeds of class conflict and civil 
strife which may become widespread. 2 

1 Schofield has furnished a scholarly description of the development of 
the constitutional right of the freedom of the press in this country. (H. Scho- 
field, Freedom of the Press in the United States, in the Papers and Proceed- 
ings of the Am. Sociological Society, Vol. IX, Chicago, 1915, pp. 67-116.) 

But he points out also how this right has been unlawfully restricted by 
the courts in the following words : — 

"The constitutional declarations of liberty of the press are original works 
of the American people in the sphere of law and government. Their chief 
practical bulwark always has been the overthrow of the Federalist party 
because of the Sedition act of 1798. As guardians and expounders of the 
declarations the courts are a failure up to date. They cannot be a success 
until judges get rid of the notion that the declarations are only declaratory 
of the anti-republican English common law of the days of Blackstone, Lord 
Mansfield, and Lord Kenyon, only previous censorship of publications on 
matters of public concern, leaving untouched the English common law of 
seditious, blasphemous, defamatory, obscene, and immoral libel. The judge- 
made liberty of the press to publish defamatory falsehood on matters of 
public concern is unauthorized judicial legislation destructive of men's 
reputations and property, inviting and encouraging the owners and editors 
of newspapers and periodicals to found their educational power on false- 
hood, whereas the declarations require them to found it on truth, except 
when the legislature sees fit to remove the restraint of truth. And the judge- 
made law of contempt of court for publications censuring judges is simply 
intolerable in a land of equality before the law where judges are no more 
important to the universe than executives and legislators." {Op. cit., 
pp. 114-115.) 

2 Cf. Brooks Adams, The Theory of Social Revolutions, New York, 1913. 
This writer states the theory that when courts become political and legislate 
the people lose faith in them and may ignore or change them. This explains 
the Terror in France when the party in power took the judicial function 
into its own hands because it distrusted the courts. The courts have been 



486 CRIMINOLOGY 

I have not the space to describe here all of the causes of 
rigidity in our social organization. There is reason to believe 
that the prevailing economic system presents much opposition 
to change. The capitalist class which is now predominant 
stands in the way of many changes which would be to the 
interest of the vast majority of human beings. As the masses 
become better educated and more self-conscious, they will 
become more restless and will resist more and more the domina- 
tion of the capitalist class. Consequently, rigidity in the 
economic as well as in the political system is very likely to give 
rise to disorder and bloody strife. Furthermore, religion and 
archaic moral standards always stand in the way of change. 

At the same time, we must not forget what I have already 
pointed out, namely, that at least a small amount of rigidity 
in our social system must always be retained for several reasons. 
In the first place, it is needed to conserve the achievements of 
the past. In the second place, it gives enough stability to the 
government to prevent frequent or continuous disorder. In 
the third place, it acts as a check upon foolish and ill-advized 
changes. 

But rarely ever is there too little rigidity to accomplish the 
above-mentioned functions. Indeed, the tendency is almost 
invariably in the opposite direction. This is due to certain 
strongly marked traits of human nature. In the first place, it 
is due to the general conservative tendency of the human mind, 
owing largely to the mental inertia which dislikes and resists 
change. In the second place, it is due to the fact that for most 
persons symbols acquire an exaggerated importance, while the 
realities for which they once stood are lost sight of. Conse- 
quently, the majority of persons are constantly defending old 
objects which have acquired symbolic significance but which 
may no longer have any real value, while they oppose new 
objects which may have a genuine value. 

and are political in this country, and as the representatives of a capitalist 
class which seems incapable of readjusting itself to changed conditions may 
precipitate a revolution. 

As is well indicated by Adams, the French Revolution is an object lesson 
which should serve as a warning. If the rulers of France had been willing 
to yield, the Bloody Terror would not have taken place, and the Revolu- 
tionary tribunals could never have bathed the soil of France with the blood 
of thousands of political offenders, the victims of the guillotine. 



EVOLUTIVE CRIME AND SOCIAL READJUSTMENT 487 

So that these mental traits should be restrained rather than 
encouraged. The most valuable disciplinary measures can be 
applied during the rearing and education of the young. I 
cannot outline a complete system here. Suffice it to say that 
by removing as far as possible the formalistic element in the 
educational system the effects of these mental traits can be 
counteracted to a large extent. Among the reforms needed are 
the abolition of the training in formal courtesy and politeness 
in the home, 1 pedagogical methods in the schools which will 
stimulate the pupils to think for themselves, academic freedom 
in the colleges and universities, etc. 

Evolutive Crime and Democracy 

The discussion in this chapter reveals the significance of 
evolutive and political crimes in relation to social readjustment. 
It is evident that these crimes manifest the presence of serious 
problems of readjustment in any social system. But they are 
of peculiar significance in any democratic system, because in a 
democracy the rights and interests of the individuals who con- 
stitute the democracy are of paramount importance. That is 
why I have emphasized their significance in this country. 

In any country the number of political crimes will depend 
in part upon the extent to which its government fails to win the 
loyal support of the inhabitants. If the government meets the 
ideals of the people, there will be few political crimes. If the 
government falls far short of these ideals, the number of these 
offenses will greatly increase. In this country the governmental 
system has attained to the political ideals of the people more 
nearly probably than in most countries. But even in this coun- 
try it has failed in many important respects to fulfill the demo- 
cratic ideals of its citizens. So that all of the movements towards 
a more thoroughgoing political democracy are of the utmost 
importance in this connection. Among these are the movements 
for making the federal constitution more amendable, for placing 
salutary restraints upon the power of the courts, for proportional 
representation, for the popular recall, for the initiative and 

1 It goes without saying that the training in genuine courtesy should be 
retained and strengthened. (The distinction between formal and genuine 
courtesy is pointed out in Chapter XIV.) 



488 CRIMINOLOGY 

referendum, for universal suffrage, and many other movements 
which I cannot describe here. 

For the same reasons are of importance the measures for 
greater freedom and equality in the forms of social organization 
outside of the political system, in matters of morals, and in the 
economic world. In fact, the movements towards an industrial 
democracy are perhaps of the most fundamental importance 
in this connection. 1 

1 1 have described briefly the movements towards political and industrial 
democracy in my Poverty and Social Progress. See especially Chapters 
XXVIII and XXIX entitled "Industrial Democracy" and "Political Re- 
organization and the Democratic State." 



CHAPTER XXX 
THE PREVENTION OF CRIME 

Changes in the nature and extent of crime — The prevention of crime de- 
pendent upon the prevention of other social evils — Individual and 
social criminogenic factors — The normal life as a preventive of crime. 

Crime as a social phenomenon will continue to change as 
long as society changes. These changes will be both in the 
nature and extent of crime. New social conditions create new 
occasions for conflict between individual and social interests, 
while obsolete causes of conflict disappear with changing condi- 
tions. The increase or decrease of crime therefore depends 
upon the proportion between the new and the old causes of 
crime. 

While civilization has destroyed many causes of crime, the 
advance of civilization has created some new occasions for 
conflict, and has therefore increased crime in some ways, though 
it is impossible to ascertain whether it has increased it on the 
whole. It is possible that civilization will continue to increase 
crime for a time. For example, the tremendous growth of cities 
in modern times has been a powerful factor for the increase of 
crime, and urban growth will doubtless continue for a time 
at least. The continual rise of moral standards will always be 
adding new forms of conduct to the list of crimes, though it 
will also be removing other forms of conduct hitherto stig- 
matized as criminal in the penal code. 

The diminution of crime will depend somewhat upon the 
growth of population and the consequent bitterness of the 
struggle for existence. If population increases too rapidly, 
this struggle will be intensified, and there can be little hope of a 
decrease of crime. But if the growth of population is regulated, 
so that the population will not increase too rapidly, the con- 
ditions of human existence will be ameliorated, and crime will 
probably diminish. This fact indicates the supreme importance 
for the prevention of crime of the intelligent use of birth control 



490 CRIMINOLOGY 

measures, which are now prohibited in many communities by- 
stupid and brutal laws. 1 

Crime can never be entirely abolished. However ideal social 
conditions may become, certain human traits which give rise to 
anti-social acts can never be eradicated. Among these traits 
are selfishness, greed, anger, jealousy, vindictiveness, envy, etc. 

It is nevertheless worth while to consider the problem of the 
prevention of crime. Economic and political reorganization 
will doubtless lessen crime in the long run. If a socialistic scheme 
of social organization proves successful, it will obviate many of 
the crimes against property. An increase in the efficiency of 
government will prevent some of the crimes against the person. 
But even if no thoroughgoing reorganization of society ever 
takes place, there will doubtless be a certain amount of improve- 
ment in economic and political conditions which will diminish 
crime somewhat. The egregious inefficiency of the existing 
economic and political system will be remedied in part, and will 
thus render more effective the methods of dealing with crime. 

The prevention of crime is dependent almost entirely upon 
the prevention of other social evils, so that it is hardly possible 
to discuss it apart from those evils. For example, a program 
for the prevention of poverty involves a program for the pre- 
vention of many of the social evils which give rise to crime, 
because crime is closely bound up in its causation with poverty 
and its attendant evils. It is, therefore, impossible to devize a 
special program for the prevention of crime, and I shall merely 
point out how its prevention is related to the prevention of these 
other evils and to the reorganization of society in general. 

In the chapter on the economic basis of crime I have shown 
how poverty and other evil features of the present economic 
organization of society give rise to crime. The instability of 
the existing economic organization is illustrated by the trade 
cycle which causes a vast amount of unemployment and violent 
fluctuations in prices and wages. In this fashion the funda- 
mental material basis of existence of a large part of society is 
rendered uncertain, and a good deal of economic pressure to 
commit criminal acts is created. The excessive inequality in 
the distribution of wealth is reflected in the great disparity 
between the criminality of the poor and of the wealthy classes. 
1 See Chapter V. 



THE PREVENTION OF CRIME 49 1 

This economic pressure also acts upon many persons who 
are not destitute, but who desire a higher standard of living. 
Many of the weaker individuals, and some of the stronger ones 
as well, yield to the temptation to commit criminal acts in order 
to attain their desires. All of these facts indicate that the pre- 
vention of crime does not depend upon special measures for the 
abolition of its specific causes, but upon a more or less thorough 
reorganization of the economic system. 

At the same time our comprehensive survey of the causes of 
crime has indicated how essential it is in the study of the etiology 
of crime to keep in mind the individual factors, as well as the 
economic and other social factors. Many writers have com- 
mitted the grave error of going to the one or to the other of these 
two extremes in formulating their theories. Among those who 
have laid excessive emphasis upon the economic factors are the 
socialists who have attributed most crimes to the economic 
organization of society, and have contended that under a social- 
ist organization there would be very little crime. In similar 
fashion, the single taxers have blamed most crimes upon the 
present economic organization, and have asserted that the single 
tax would prevent most of them. Some of the anarchists have 
taken a similar view .with respect to the present situation, but 
have contended that the abolition of all political organization 
would be the most effective preventive of crime. A number of 
sentimentalists without any definite program have attributed 
most crimes to economic factors because they have been unwill- 
ing to blame them upon the criminals themselves. 

On the other hand, there have been many persons who have 
given excessive weight to the individual factors in the causation 
of crime. Among these have been some religious writers who 
have apparently wanted to emphasize the sinfulness and personal 
responsibility of criminals because they believe in the existence 
of a free will. But probably the majority of those who have 
taken this view have done so for conservative reasons, because 
they did not want to blame most crimes upon the existing 
order, which they want to preserve. 

There have also been a few criminal anthropologists and psy- 
chiatrists who have become so obsessed with the pathological 
and abnormal traits of the criminal class that they have been 
able to see few of the factors outside of the individuals. They 



492 CRIMINOLOGY 

have therefore given undue weight to the individual factors 
for crime. 

Excessive emphasis upon the individual factors in criminality 
has led some persons to the belief that eugenic measures can 
prevent crime entirely or in large part. These measures may 
eliminate some of the feebleminded and psychopathic criminals. 
But it is obvious that it cannot remove the powerful crimino- 
genic factors in the environment. 

In the last analysis, it may be said that crime will disappear 
to the extent to which the normal life becomes possible for man- 
kind. By the normal life I mean the spontaneous expression of 
human nature. In any organized society this spontaneity must 
be limited by at least a small amount of social control. But in 
the existing organization of society this spontaneity is limited 
far more than is necessary for social welfare. 

The prevention of poverty and other economic evils, and the 
abolition of the restrictions imposed by institutionalized religion, 
conventional morality, and antiquated repressive laws, would 
increase greatly the scope of the normal life for human beings, 
and would obviate to a corresponding degree the occasions for 
anti-social conduct. So that the great forces of science and of 
statesmanship in our civilization should be directed towards 
attaining the highest goal of social progress which will render the 
normal life more feasible for all of mankind. 

Hence it is that the problem of crime is a problem of human 
freedom as well as of repression. It is to a considerable extent 
a problem of liberating mankind from the bonds which fetter 
body and mind and which interfere with the development of a 
full and well-rounded human personality. 



APPENDIX A 
PRICES OF CEREALS AND CRIMES AGAINST PROPERTY 



The charts on pages 72, 74, and 76, are plotted from the following 
tables: 

England and Wales x 

Crimes against Properly 





Years 


Price of 


Wheat 




without Violence to 100,000 








{Quarter) 




of the Popidation 








sh. 


d. 








1858 




44 


2 




439 




1859 




43 


10 




399 




i860 




53 


3 




392 




1861 




55 


4 




4i5 




1862 




55 


5 




433 




1863 




44 







392 




1864 




40 


2 




365 




Average 








405 










France 


2 












Number of Persons Convicted of Crimes 


Years 


Average Price of 


a 




against Property (to 1,000 of 




Hectolitre 


of Wheat 




Population) 






Jr. 


c. 








1850 




14 


32 






14.058 


1851 




14 


48 






14.678 


1852 




16 


75 






16.217 


1853 




22 


39 






16.652 


1854 




28 


82 






20.442 


1855 




29 


32 






19.223 


1856 




30 


75 






18.222 


i857 




24 


37 






17.218 


1858 




16 


75 






15-437 


1859 




16 


75 






14-655 


i860 




20 


24 






I5-707 


1861 




24 


55 






16.518 


1862 




23 


24 






16.742 


1863 




19 


78 






15-309 



1 Rearranged and adapted from G. von Mayr, Statistik der gerichtlichen 
Polizei im Konigreiche Bayern und in einigen anderen Ldndern, Munich, 
1867; and W. A. Bonger, Criminality and Economic Conditions, Boston, 
1916, pp. 43-44- 

2 A. Corne, Essai sur la criminalite, in the Jour, des Economistes , Jan., 
1868, p. 81. 



494 






APPENDIX A 

Russia * 






Convictions for Thef 


tto 


Ratio of Cereal 


Years 


100,000 cf the 


Price of a "Pud" 


Crop to Average Crop of 




Population 


of Rye in Kopecks 


25 Years ( = 100) 


1874 




76 


75 


105 


1875 




77 


73 


90 


1876 




78 


76 


95 


1877 




86 


80 


103 


1878 




95 


76 


106 


1879 




90 


86 


93 


1880 




104 


99 


87 


1881 




103 


129 


105 


Average 1874-81 


89 


87 




1884 




45 


90 


108 


1885 




46 


77 


90 


1886 




44 


74 


100 


1887 




45 


67 


114 


1888 




43 


65 


108 


1889 




43 


70 


^3 


1890 




46 


68 


97 


1891 




52 


129 


73 


1892 




52 


89 • 


&7 


1893 




50 


61 


104 


1894 




50 


5o. 


121 


Average 1884-94 


47 


76 




X E. 


Tarnowski, 


La delinquenza e la vita sociale 


in Russia, in the Rivista 


Italiana di sociolog 


ia, July, 


1898, p. 497. 





APPENDIX B 
A BIOMETRIC STUDY OF THE ENGLISH CONVICT 

In 1913 was published "The English Convict" by Charles Goring, 
Deputy Medical Officer of H. M. Prison, Parkhurst. This is a report 
of a statistical study of three thousand convicts in the English prisons. 
I shall give a brief summary of the conclusions of this report because 
of the light they throw upon the traits of the criminal. 

Before beginning this summary I shall refer to one feature of Dr. 
Goring's report which mars it throughout. The first section is en- 
titled "The Superstition of Criminology." It appears that this 
superstition is, according to Dr. Goring, a belief in a distinct criminal 
type. He thinks that this belief has been widespread among crim- 
inologists up to the present day, and that Lombroso is largely respon- 
sible for this belief. In order, therefore, to indicate the nature of this 
alleged belief, he attempts to state Lombroso's theory as he under- 
stands it. 

He asserts that Lombroso's theory "is to the effect that the crim- 
inal, as found in prison, is a definite, anomalous, human type: that is 
to say, he is a specific product of anomalous biological conditions. . . . 
Atavistic, insane, savage, degenerate, all or any of these things, what- 
ever they may mean, the criminal may be; one thing the criminologists 
will not let him be: he is not, he never is, say the Lombrosians, a 
perfectly normal human being, responsible for his own actions. No 
matter what is the nature of the defect — and even amongst Lom- 
broso's immediate disciples there has been much divergence of opinion 
in this respect — the essential fact upon which all are agreed is that 
the mind of the criminal is defective in some way; that the criminal 
is either mentally diseased, or so mentally anomalous that he ought 
not to be judged by the ordinary standards of morality. And this 
doctrine, they declare, flows naturally from the facts of criminal 
anthropology, i. e., from the facts which have been elicited by direct 
observation of criminals as found in prisons." (P. 13.) "The pre- 
conceived, and, in our opinion, totally unfounded, Lombrosian notion, 
was that criminality is a specific condition of mind or soul: is a definite 
state of psychical instability. And this psychical state, with its out- 
ward and physical signs of an inward and spiritual darkness, this 
mental and moral instability, underlay, according to the above sup- 
position, any and every form of lawlessness, and potentiality for 
crime-, and was its only explanation, and its sole promotor." (P. 15.) 



496 APPENDIX B 

To any one familiar with Lombroso's theory it is apparent that 
Dr. Goring is grossly and inexcusably misrepresenting him. Lombroso 
never asserted that the criminal in prison always belongs to a "def- 
inite, anomalous, human type," and the " Lombrosians " never assert 
that the criminal is never a "perfectly normal human being." On the 
contrary, towards the end of his career Lombroso did not believe that 
more than forty per cent of the criminals belonged to the type he 
called the "born criminal," while all of the "Lombrosians" believe 
that circumstances lead many normal individuals to commit crime. 
Whatever his mistakes may have been, Lombroso never took this 
extreme view. And yet Dr. Goring, laboring under this unpardonable 
delusion, takes occasion at numerous points throughout his report to 
criticize Lombroso severely for this grotesque theory which he attrib- 
utes to him. 

In passing I should, in self-defense, take note of a gross misrep- 
resentation of me of which Dr. Goring has also been guilty. Speaking 
of books written by Tarnowsky, 1 Ferrero, 2 and myself, 3 he says: — ■ 
"During the past year, three books of scientific pretensions have been 
published; one dedicated to Lombroso himself; all- three devoted to 
the propagation of his discoveries and creed." (P. 19.) The implica- 
tion of this statement seems to be that I wrote my book as a follower 
and disciple of Lombroso. It is true that I endeavored in that book, 
and also more briefly in another writing, 4 to give a sympathetic ex- 
position of Lombroso's work and ideas. But at no point in any one 
of my writings have I given justification for the notion that I am 
a disciple of Lombroso. On the contrary, most of my book referred 
to by Goring is devoted to the propagation of ideas which did not 
originate with Lombroso, and I have criticized the Lombrosian theory 
at many points. As an illustration I will quote one passage which 
includes both criticism and appreciation. " More than any other man 
he has stimulated the development of the new science of criminology. 
His original and versatile genius and aggressive personality have led 
in this great movement towards the application of the positive method 
to the problem of crime. As a pioneer in the anthropological study 
of the criminal he was bound to make mistakes, and his impetuous 
temperament, leading him sometimes to generalizations drawn too 
hastily, has tended to increase the number of these mistakes. On 
account of these mistakes as well as because he has been a pioneer, 

1 Les femmes homicides. 

2 Criminal Men. 

3 The Principles of Anthropology and Sociology in Their Relations to Crim- 
inal Procedure, New York, 1908. 

4 Introduction to Lombroso's Crime, Its Causes and its Remedies, Boston, 
1911. 



APPENDIX B 497 

he has suffered a great deal of criticism." J This passage was written 
before Lombroso's death. 

Goring has great faith in the statistical method, and rejects all 
other methods in his investigation. His first inquiry is as to the 
"alleged existence of a 'physical criminal type.'" This is, of course, 
directed towards overthrowing the Lombrosian theory of the born 
criminal. He has the measurements of thirty-seven characters of his 
convicts, including the dimensions of the head and face, the relations 
of various parts of the body to each other, etc. These measurements 
he has correlated with the crimes these convicts have committed. 
"It will be seen that ten only of the thirty-seven characters have 
correlations with nature of crime greater than .1, and that the correla- 
tions of the remaining twenty-seven are either insignificant, relatively 
to their probable errors, or so small in value as to be legitimately 
ignored in such limited samples as those we have been examining. 
Of the ten above .1 in value, three only are above .2, and only one 
above .3 in value. With the exception of these ten, which will require 
more detailed investigation, we may say that these physical characters 
have no significant association with the nature of the crime com- 
mitted." (P. 129.) After making a comparison between criminals as 
a class and the non-criminal public, he states his final conclusion; — 
"From these comparisons, no evidence has emerged confirming the 
existence of a physical criminal type, such as Lombroso and his disciples 
have described." (P. 173.) 

Goring describes in the next place the physique of his criminals. 
He has measurements and records of height, weight, span of arms, 
general health, physical constitution, muscularity, etc. He concludes 
that his convicts are inferior in stature and weight, and that there 
are certain physical differences between different types of criminals. 
"From the above recorded differences in relation to their probable 
errors, we see that in all three characters, violence and sexual offenders 
stand out from others — the former in being more healthy, more 
muscular and stouter than criminals generally, and the latter by their 
lack of differentiation in these respects. On the other hand, incen- 
diaries and thieves are similarly less healthy, less muscular, and less 
stout than criminals generally; and fraudulent offenders also are defi- 
cient in health and muscularity. Starting with violence, there is a 
progressive falling off in health and strength, and, with one exception, 
a progressively increasing degree of emaciation as we pass through 
rape, fraud, arson and stealing." (P. 186.) His final conclusion is 
that "all English criminals, with the exception of those technically 
convicted of fraud, are markedly differentiated from the general 

1 The Principles of Anthropology and Sociology in Their Relations to Crim- 
inal Procedure, p. 24. 



49$ APPENDIX B 

population in stature and body-weight; in addition, offenders con- 
victed of violence to the person are characterised by an average degree 
of strength and of constitutional soundness considerably above the 
average of other criminals, and of the law-abiding community; finally, 
thieves and burglars (who constitute, it must be borne in mind, 90 per 
cent of all criminals), and also incendiaries, as well as being inferior 
in stature and weight, are also, relatively to other criminals and the 
population at large, puny in their general bodily habit." (P. 200.) 

He next studies age as an etiological factor in crime. He finds 
among his convicts a tendency to begin their criminal careers early in 
life, which leads him to the tentative conclusion that "the majority 
of habituals are first convicted during adolescence because a relative 
predisposition to transgress, or, it may be, a relative incapacity to 
keep, the law, like most human predispositions, tends to become man- 
ifest at the earliest opportunity. . . . Assuming, then, the existence 
of variability in criminal proclivity — assuming the existence of social 
or anti-social predispositions, variable amongst individuals, but 
possessed to some degree by all people, it should not be surprising 
that more than a half of habitual criminals give evidence of their own 
peculiar anti-social proclivities before the age of 25." (P. 212.) This 
statement foreshadows his later conclusion with regard to the extent 
to which crime is determined by a predisposition to crime in the crim- 
inal. 

Then he takes up the criminal's vital statistics with regard to 
health, disease, mortality, and enumeration. He finds that with 
respect to health in general and most diseases, including insanity, the 
convict compares favorably with the population at large. "In the 
main, this exhaustive inquiry indicates that there is no relation be- 
tween a healthy or delicate constitution per se and the committing of 
crime; and that the coefficient of correlation between these conditions 
is .07 : a value which shows that, if anything, the criminal is healthier 
on the whole than is the law-abiding subject." (P. 228.) But he finds 
three pathological conditions prevalent among his criminals, namely, 
epilepsy, alcoholism, and what he calls sexual profligacy, by which he 
means venereal disease. "The mortality statistics confirm the pre- 
vailing belief that epilepsy conduces to the committing of crime; and 
the intensity of this influence, measured on the correlation scale, is 
given by the fraction .26. The important part played by alcoholism 
in the committing of crime is illustrated by the relatively high value 
of the correlation coefficient of criminality with alcoholism, .39, and 
by the increased mortality and prevalency amongst prisoners, rel- 
atively to the general population, of diseases associated with this con-^ 
dition. Similarly, the relation between sexual profligacy and crime 
is statistically demonstrated by the value of the correlation coefficient 



APPENDIX B 499 

between criminality and syphilis, .31, and also by the increased prison 
mortality and prevalency of all diseases to which some form of vene- 
real disease is antecedent." (P. 229.) 

With regard to the mortality of the criminal he concludes that 
"the presumptive evidence is that the death-rate of criminals approx- 
imates closely to that of the general population." (P. 233.) Then by 
means of a complicated statistical calculation he estimates that the 
total population of male offenders, both prior and subsequent to con- 
viction, in England and Wales, is 3,110,500. Of these 1,115,490 are 
prior to conviction, or eventual offenders; and 1,995,010 are subse- 
quent to convictions, or manifest offenders. (P. 234.) 

Goring now turns to the mental traits of the criminal. It is obvious 
that mental traits cannot be measured directly, so that he depends in 
most cases upon personal estimations of them made by observers of 
the individual criminals. First he studies a number of mental traits 
under the following heads: — 

1. Temperament. Here he classifies the degree of suspiciousness of 
the criminal under the categories of suspicious, trustful and medium; 
the sanguine as opposed to the phlegmatic temperament; the con- 
tented as opposed to the discontented frames of mind; and the de- 
gree of egotism under the categories of egotistic, sympathetic, and be- 
twixt. (P. 238.) 

2. Temper, under the categories of good or amiable or serene temper, 
as opposed to bad temper, under which are hot and violent forms and 
sullen and violent forms. (P. 238.) 

3. Facility, under which "convicts are classified within the three 
categories of facile, obstinate, and medium, according to their tendency 
to respond or to be resistant to the influence of other personalities and 
of circumstances." (P. 239.) 

4. Conduct, "graduated by the average number of reports for bad 
behavior during one year's sojourn in prison." (P. 239.) 

5. Suicidal tendency, "estimated from the recorded facts of at- 
tempts to commit suicide." (P. 239.) 

6. Insane diathesis, "measured by the fact that a convict has, or 
has not, been in an asylum at some time of his life." (P. 239.) 

After working out the necessary correlations he arrives at the follow- 
ing conclusion with respect to temperament: — "The only correlation 
whose value has any significance is the one measuring the relation 
between egotism and crime, (crude correlation ratio .23). Referring 
to the means of egotism within the several groups, we see that the 
value of this coefficient measures the extent to which fraudulent and 
sexual offenders tend, on the average, to be more egotistic than those 
committing other types of crime. For the rest, we conclude that 
there is no relation between the temperament of criminals and the 



500 APPENDIX B 

kind of crime they commit. We see, however, that criminals are 
highly differentiated in general intelligence; and also that the more 
feeble their intelligence may be, the more marked becomes the av- 
erage degree of melancholic tendency, of discontentment, and es- 
pecially of suspiciousness, displayed by criminals." (P. 241.) 

With respect to temper, facility and conduct he says that "in con- 
junction with the other evidence produced, we conclude that criminals 
•convicted of violent crimes are distinguished by hot and uncontrolled 
tempers, and by obstinacy of purpose, but that other differences of 
temper, will, and conduct, amongst convicts, depend entirely upon 
the grade of their general intelligence." (P. 244.) 

W T ith respect to suicide and insanity he says that "criminals con- 
victed of violence crimes, as well as being distinguished by hot and 
uncontrolled temper, and by obstinacy of will, are also differentiated 
from other types of convicts by increased suicidal tendency, and by 
an augmented proclivity to be eventually certified insane; but that in 
other respects — excluding a slightly increased degree of egotism dis- 
played by offenders technically convicted of fraud — differences of 
temperament, temper, will, conduct, suicidal tendency, and insane 
-proclivity, amongst convicts, depend entirely upon their differentia- 
tion in general intelligence." (P. 245.) 

Because he believed that differences in these mental traits depend 
largely upon differences in intelligence, he studied the differences in 
the mental capacity of his criminals. After making an elaborate 
calculation of the amount of mental defectiveness in the general 
population and among criminals he says that "against the .4 5 per cent, 
of defectives in the general population, the proportion of mentally 
defective criminals cannot be less than 10 per cent., and is probably not 
greater than 20 per cent." (P. 255.) Assuming that the convicted 
felons form 1.29 per cent of the general population he calculates a 
coefficient of correlation between these convicts and mental defective- 
ness of .63. "It is clear that the relationship between mental de- 
fectiveness and the committing of all types of crime, with the excep- 
tion of some kinds of fraud, is an extremely intimate one. The 
strength of this bond transcends that of any we have hitherto been 
able to discover: and it is evident that defective intelligence is one of 
the primal sources of crime in this country." (P. 260.) 

With respect to the relation of this mental defectiveness to the 
other constitutional determinants of crime, he says that "defective 
physique, extreme forms of alcoholism, epilepsy, insanity, sexual 
profligacy, and weak-mindedness — these are the constitutional 
conditions, and the only ones, which so far have emerged as signif- 
icantly associated with the committing of crime in this country." 
(P. 262.) His final conclusion is as follows: — "Our final conclusion 



APPENDIX B 50I 

is that English criminals are selected by a physical condition, and a 
mental constitution which are independent of each other — that the 
one significant physical association with criminality is a generally 
defective physique; and that the one vital mental constitutional fac- 
tor in the etiology of crime is defective intelligence." (P. 263.) 

Next he takes up the influence of the "force of circumstances " 
upon the genesis of crime. Here he examines the following condi- 
tions: — nationality; education; employment; alcoholism; influence 
of family life, including the standard of living of parents, the age of 
the subjects at the death of their mothers, the order of the subject in 
his family, and the number in the family of the subject; and the rela- 
tion of the first to subsequent convictions of convicts, including the 
age of the subject at first conviction, and the nature of the subject's 
first sentence. 

It would be impossible to summarize here his lengthy analysis of 
these factors and their degree of correlation with crime, which he finds 
to be very small. His final conclusion is as follows: — "From the 
general trend of the results tabulated above, our interim conclusion 
is that, relatively to its origin in the constitution of the malefactor, and 
especially in his mentally defective constitution, crime in this coun- 
try is only to a trifling extent (if to any) the product of social in- 
equality, of adverse environment, or of other manifestations of what 
may be comprehensively termed 'the force of circumstances.'" 
(P. 288.) However, this conclusion is only tentative. "Very super- 
ficially and imperfectly we have, in this chapter, touched upon a 
subject of the greatest importance criminologically; our conclusions 
have no pretensions to finality: our hope is that they may lead to a 
more thorough and representative statistical examination of a ques- 
tion so urgently awaiting solution." (P. 289.) 

After an elaborate investigation of the fertility of criminals he 
comes to the conclusions that the absolute fertility of criminals to 
the absolute fertility of the general community is as 550,653 to 877,852 
(P. 296) ; that criminals are a product of the most prolific stocks in 
the community; and that habitual criminals are less than half as 
fertile as other criminals, but that this is not due to physiological 
sterility but to the desertion of habitual criminals by their wives. 

The last thing he investigates is the influence of heredity upon the 
genesis of crime. The result of this investigation is that "the family 
incidence of crime is not fortuitously distributed, is not entirely in- 
dependent of lineage; that criminals do not occur equally in all families 
of the general community, but tend to be restricted to particular 
stocks or sections of the community: to those stocks tainted with 
criminal ancestry. And we have found that the intensity of this 
limitation, the intensity of this parental resemblance in criminal 



502 APPENDIX B 

propensity, ranges between .45 and .6." (P. 364.) Comparing this 
conclusion with regard to heredity with the previous conclusions with 
regard to defective physique, mental defectiveness, and the influence 
of environmental conditions, he states two general conclusions; — ■ 
"The one is that the criminal diathesis, revealed by the tendency 
to be convicted and imprisoned for crime, is inherited at much the 
same rate as are other physical and mental qualities and pathological 
conditions in man. The second is that the influence of parental con- 
tagion, although varying somewhat in intensity in different conditions, 
is, on the whole, inconsiderable, relatively to the influence of inher- 
itance, and of mental defectiveness: which are by far the most signif- 
icant factors we have been able to discover in the etiology of crime." 
(P. 368.) 

It would be easy to criticize severely Goring's methods and con- 
clusions in various respects. For example, he carries the statistical 
method too far in his attempt to measure all of the traits of the 
criminal by means of it, inasmuch as many traits, such as most of the 
mental traits, cannot be studied by a quantitative method. His 
classification of the mental traits of criminals studied by him is very 
crude and betokens an ignorance of psychology on his part. He does 
not appear to have given enough weight to the fact that the criminals 
studied by him, as convicts incarcerated in a prison, necessarily 
formed a selected group of criminals. But I have not the space for 
extended criticism, and, in any case, this has already been done at 
great length by others of his critics. 1 

With regard to the main object of his report, namely, his polemical 
attack upon Lombroso, (which is out of place in any scientific treatise), 
it is obvious from the brief citations which I have presented that his 
conclusions are almost entirely self-contradictory. While he has fur- 
nished some facts to disprove the existence of an anthropological 
criminal type, (which, indeed, needs no disproof), he has proved him- 
self more Lombrosian than Lombroso himself in his emphasis upon the 
hereditary factors for criminality in the form of a "criminal diathesis," 
and in his unwarranted depreciation of the influence of the "force of 
circumstances" or environment as a cause of crime. 

1 For example, see a symposium upon Goring's report in two numbers of 
Volume V of the Jour, of the Am. Institute of Critn. Laiv and Criminology, 
(July and Sept., 19 14), including the following articles: Gina Lombroso- 
Ferrero, The Results of an Official Investigation in England, pp. 207-223; 
E. Ferri, The Present Movement in Criminal Anthropology, pp. 224-227; S. 
de Sanctis, An Investigation of English Convicts and Criminal Anthropology, 
pp. 228-240; W. A. White, Method and Motive from the Psychiatric Viewpoint, 
pp. 348-352; H. D. Newkirk, The Sociologic Problem, pp. 353-357; P. E. 
Bowers, Criminal Anthropology, pp. 358-363. 



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Feeble-Minded. 1908. Vol. VIII. London. 
Robertson, J. M. 1906. A Short History of Free Thought, 2 vols. 

London. 
Robinson, W. C. 1882. Elementary Law. Boston. 
Ross, E. A. 1901. Social Control. New York. 
Russell, C. E. B. and Rigby, L. M. 1906. The Making of the 

Criminal. London. 
de Ryckere, R. 1908. La servante criminelle, Etude de criminologie 

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Saleilles, R. 191 1. The Individualization of Punishment, trans. 

from the French. Boston. 
Salt, H. S. 1916. The Flogging Craze. London. 
de Sanctis, S. 1906. "Types et degres d'insuffisance mentale," 

Uannee psychologiqne, Vol. XII, pp. 70-84. 
. 191 1. "Mental Development and the Measure of the Level 

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pp. 498-507- 
Schroeder, Theodore. 191 1. "Obscene" Literature and Consti- 
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Seebohm, F. 1902. Tribal Custom in Anglo-Saxon Law. London. 
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London. 
Sernicoli, E. 1894. L'anarchia e gli anarchici, 2 vols. Milan. 
Servier. 1 901. "La peine de mort remplacee par la castration," 

Arch. oVanth. critn., Vol. XVI, 1901, pp. 129-141. 
Sherlock, E. B. 1911. The Feeble-Minded. London. 
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. 1 9 10. Le crime a deux, 2nd ed. Paris. 

Sommer, R. 1904. Kriminalpsychologie und Strafrechtliche Psy- 

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Sumner, W. G. 1907. Folkways. Boston. 

Sutherland, A. 1898. The Origin and Growth of the Moral In- 
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Sutherland, J. F. 1908. Recidivism: Habitual Criminality and 
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INDEX 



Abbott, E., 219 
Adam, H. L., 246, 354 
Adams, B., 485-6 
Adolescence, 177, 208-9 
Agent provocateur, 466-7 
Albanel, L., 219 
Alcoholism (see Intemperance) 
Altruism, 464 

Amentia, 57-8, 129, 131, 135-7, *47, 
152, 156-70, 171-2 

extent of criminal, 163-70 
von Amira, K., 12 
Ammon, O., 138 
Anarchism, 459-60, 465 
Anatomy, 4, 5, 127 
Anderson, V. V., 173-4 
Andrews, W., 358 
Animals, punishment of, 10-12 

equivalents or analogues of crime 
among, 7-8 

equivalents or analogues of pun- 
ishment among, 8-9 
Animism, 15 
Anthropology, 4, 371-2 

criminal, 5 
Anthropomorphism, n 
Appeal, right of, 283 
Arboux, J., 187 
Aristotle, 118 
Art, 1 16-19 

Aschaffenburg, G., 46, 47, 55, 82, 
108, 141, 193, 215-16, 220, 225, 
238 
Assassination, political, 454, 459, 

469 
Assessor, 324 
Asylum, criminal, 445 
Atavism, 129, 130, 135-6, 139, 207-8 
Aubry, P., 179 



B 

Bagehot, W., 456 

Bail, 352 

Baldwin, R. N., 408 

Banishment, 358, 359-60 

Barnett, J. D., 333 

Barrows, S. J., 267 

Beach, C. F., 256 

Bebel, A., 467 

Beccaria, C, 280, ^3 

Benedikt, M., 181 

Berkman, A., 437, 442, 480 

Berthomieu, C, 478 

Best, W. M., 289, 326 

Binet, A., 161, 166, 168, 169 

Binet-Sangle, C, 179 

Birnbaum, K., 181 

Birth control, restriction of, 482, 

489-90 
Blackmail, 58, 275, 346-7, 348 
Blackstone, W., 302, 472 
Blasphemy, 474-7 
Bodington, O. E., 307 
Bolton, J. S., 147, 174 
Bonger, W., 71, 78, 80, 81, 82, 85, 

86, 102, 107, 108, 213, 216, 225, 

237, 243, 493 
Borchard, E. M., 353 
Bournet, A., 54 
Bowers, P. E., 167-8, 502 
Breckinridge, S. P., 219 
Brehon law, the, 259 
Brewer, D. J., 472, 474 
Bridges, J. W., 162, 169 
Bronner, A. F., 168, 169 
Brooks, J. G., 460 
Brooks, S., 349 
Browning, R., 303 
Buckle, H. T., 43 
Burglary, 58 



515 



5x6 



INDEX 



Burns, W. J., 481 
Bury, J. B., 457, 477 
Byers, J. P., 205 
Byrnes, T., 200 



Capital punishment (see Death 

penalty) 
Carson, H. L., 260 
Castration, 415 
Catholicism, 108-9, 275—7 
Cell, prison, 421, 423-4 
Chamberlain, H. S., 138 
Channing, W., 463 
Cherry, R. R., 256, 257, 258, 259 
Childs, H. G., 161 
Christianity, 23, 33, 1 14-15, 369, 

47o-4, 476-8 
Church, A., 175 
Civil justice, free, 314-15 
Climate, 4, 44-5, 52-3, 140 
Clouston, T. S., 175 
Colajanni, N., 102, 141, 246 
Cole, R. H., 175 
Collie, J., 434 
Colony, penal, 445-6 
Composition of wrongs, 252, 260-1 
Compurgation, 285 
Conduct, 3 

criminal, 5 

normal and abnormal, 6 
Conjugal condition, 237-40 
Conscription, military, 478-9, 482 
Conservatism, 461-2, 483, 486 
Conti, U., 443 
Contract labor, 429-32 
Cook, A., 442 
Cooper, J. W. A., 178 
Corne, A., 493 
Coroner, 294-5, 317 
Corporal punishment, 447-8 
Corre, A., 48, 123, 182, 185, 246 
Courtesy, 223-4, 487 
Courts, the, 97-8, 484-5 
Crime, 3 

beginnings of, 13 

definition of, 32 

equivalents or analogues of, 7-8 



Crime — continued. 

evolution of, 5 

extent of, 12 1-4, 489-90 

nature of, 5 

prevention of, 364-5, 489-92 

study of, 3-6 
Crimes, against property, 44-5, 69- 

7ii 75, 77-9, 49o, 493-4 
against the person, 44-5, 79, 490 
classification of, 264-70 
common, 453-6 

evolutive, 455-7, 467-8, 469-88 
political, 80, 372, 418, 453-7, 

467-9, 487 
sexual, 46, 79 
Criminality, extent of, 202-6 
rural, 55-61 
urban, 55-61, 489 
Criminals, 36-9 
born, 39, 128-31, 149-50, 156-7, 

195-6 
by passion, 188-9, I 9 I , I 97, 2I 5 
classification of, 186-98 
evolutive, 198, 201, 205, 215, 446, 

461-6 
feebleminded (aments), 156-70, 

199, 205, 215, 492 
habitual, 190-1, 196 
insane, 188, 196-7, 199, 205, 215 
occasional, 84, 86, 155, 185, 189- 

90, 191, 197, 201, 205-6, 215 
political, 150, 191-2, 201, 205, 

215, 446, 461-6 
professional, 84-6, 154, 185, 192, 

196, 199-200, 205-6, 215 
psychopathic, 171-85, 199, 205, 
215, 492 
Criminology, branches of, 5 

study of, 3-6, 343 
Crofton, W., 435 
Crothers, T. D., 178 
Custom, 14-15, 27, 469 

D 

Dade, W. H., 446 
Darwin, C, 376 

Death penalty, the, 358, 359, 367, 
410-20, 482 



INDEX 



517 



Debt, punishment for, 366 
Defense, private, 301-5 

public, 301-15 
Dementia, 137, 147, 148, 173-5 
Democracy, 101, 124, S33, 336-7, 

39°, 398, 458, 474, 480, 484, 

487-8 
Demography, 4, 54-66 
Desmaze, C, 359 
Despotism, 30, 33-4, 253-4, 262, 

367, 378, 390, 457 
Detective agencies, 467-8 
Detention, 365, 422, 442-3 
Determinism, 379-80 
Deterrence, 359, 411-14 
Dexter, E. G., 48-51, 52 
Dostoievsky, F. M., 118 
Drahrns, A., 187 
Dubuisson, P., 178 
Du Cane, E. F., 358, 361, 410 
Duprat, G. L., 209, 216, 377 
Durkheim, E., 254, 269, 368, 386 



Earle, T. W., 323 

Economic legislation, 480-1 

Economics, 4 

Education, 220-6, 432, 487 

Ellis, H., 31, 181, 182, 192, 242 

Ellwood, C. A., 122, 187, 442 

Embezzlement, 59 

Emotion (see Feeling) 

English common law, the, 255, 258- 

64, 282, 283, 471-2 
Epilepsy, 178-9 
Ethics, 6 
Eugenics, 492 
Evans, E. P., 9, 10, 12 
Evidence, 285-300, 313, 325 

direct, 287 

hearsay, 288, 325 

indirect (circumstantial), 287 
Expert testimony, 291-2, 293-4 
Ex post facto legislation, 390-1 
Extenuating circumstances, 391 



Family, 219-20, 244 
Feeblemindedness (see Amentia) 



Feeling, 132, I43~5, 151, 158, 357, 

374-6, 381-4, 386 
Felony, 265-6 
Fenton, F., 120 
Fernald, G. M., 162 
Ferrero, G., 246 
Ferrero, G. L., 496, 502 
Ferri, E., 46, 96, 117, 123, 140, 186, 

190-2, 303, 313, 455, 502 
Fining, 360 

Finkelnburg, K., 202, 203 
Flexner, B., 407 
Flynt, J., 336, 345 
Foley, J. P., 472 
Forgery, 59 
Fornasari di Verce, E., 75, 77, 78, 

80 
Fosdick, R. B., 337, 344, 349-50 
Fraud, 59, 458, 483 
Frazer, J. G., 16, 17-18, 22, 23, 24, 

29, 253 
Freedom, 456-61, 492 

of action, 456-7 

of religion, 470-9 

of speech, 456-7, 458, 460-1, 483 

of thought, 456-7 

restrictions upon, 457-61, 470-82 
Free will, 378-80, 385, 491 
Freund, E., 269, 335 
Frick, H. C., 480 
Fry, E., 362 
Fuld, L. F., 343-4 



Gammon, H. R. P., 354 

Garofalo, R., 96, 123, 193-5, 225, 

322 
Gaynor, W. J., 349 
Gemmill, W. N., 429 
Genil-Perrin, G., 464 
Ginnell, L., 259 
Ginsberg, M., 273 
Glueck, B., 176 
de Gobineau, J. A., 138 
Goddard, H. H., 159, 161, 165-7, 

169 
Goebel, Jr., J., 122 
Goldman, M. C., 313 



5i8 



INDEX 



Goodnow, F. J., 347 

Goring, C, 157, 163-5, 202-3, 495~ 

502 
Government, 29, 92-8, 251 
Granier, C, 246 
de la Grasserie, R., 269 
Griffith, G., 446 
Guyau, J. M., 117, 377 

H 

Habeas corpus, writ of, 352 

Habit, 27, 143, 148-9, 178 

Haines, C. G., 333 

Haines, T. H., 168-9 

Hale, M., 472 

Hall, A. C, 122 

Hardwick, R. S., 162 

Hassler, I., 474 

Hawthorne, J., 442 

Healy, M. T\, 180 

Healy, W., 156, 157, 162, 167, 169, 

171-2, 173, 175, 176, 177, 180, 

182, 199, 200 
Helbing, F., 359 
Henderson, C. R., 424 
Henry II, 316-7 
Hickson, W. J., 167 
History, 4 
Hobhouse, L. T., 254, 263-4, 273, 

374 
Hodder, A., 349 
Hoffman, F. L., 351 
Holdsworth, W. S., 260, 261 
Hollingworth, L. S., 243 
Holyoake, G. J., 467 
Homicide, extent of, 350-1 
Howard, J., 362, 363 
Huey, E. B., 170 
Humanitarianism, n 2-13, 124, 370- 

2, 416-17, 419 
Hunter, R., 467 
Hysteria, 179 



Identification of criminals, 340 
Illiteracy, 225-6 
Immigration, 227-9 



Imprisonment, 229-30, 361-3, 414, 

421-40 
Incest, 21 

Incitement to crime, 458, 483 
Indemnification, 304, 353 
Indictment, 282 
Individual, the, 5, 25-6, 30 
Individualization of punishment 

(see Punishment) 
Infanticide, 59 
Inquisition, the, 286, 369-70 
Insanity, 129, 131, 137, 147-8, 151- 

2, 174-6 
Instinct, 38, 13 1-2, 142-3, 150-1, 

157-8, 195-6, 357, 374-6, 381-4 
Intelligence, 132-3, i45"6, 151, 

156-8, 376, 382 
Intemperance, 89, 136, 137, 148 
Ives, G., 358, 361 



Jail, 422, 443-4 
Janet, P., 175 
Jarno, E., 267 
Jefferson, T., 472 
Jesus Christ, 10-11, 471, 476 
Joly, H., 90 

Judaism, 22-3, 32-3, 108 
Judge, 311-12, 319-20, 321, 322, 
327-34, 354, 402, 407 

control of, 332-4, 485 

training of, 3 11-12 , 329-32 
Jurisprudence, comparative, 4 

criminal, 5 
Juror, 317-21 
Jury, 286-7, 316-27, 328, 334 

grand, 282, 317 

petit, 317-27 
Juvenile court, 331, 400-7 

K 

van Kan, J., 73, 123 
Kauffmann, M., 181 
Keedy, E. R., 303 
Keeler, C. O., 441 
Kellor, F. A., 182, 246 
Kenny, C. S., 266 



INDEX 



519 



Kent, J., 472 
King's peace, the, 261-2 
Kocourek, A., 254 
Kovalevsky, P., 181 
Kraepelin, E., 175 
Krafft-Ebing, R., 175 
Kraus, A., 181 
Kropotkin, P., 467 
Kuhlman, F., 163 



Lacassagne, A., 8, 69, 187, 411 

Laidler, H. W., 338 

de Lanessan, J. L., in, 112, 222, 377 

Laschi, R., 188, 463 

Latouche, P., 465 

Laurent, E., 84, 109, 180, 182-4 

Law, 4, 29, 97-8, 251 

civil, 24, 98, 252, 255-6, 257, 271, 

360, 366 
criminal, 98, 251-64, 271 

Lea, H. C, 286, 370 

Leale, H., 245-6 

Lecky, W. E. H., 374 

Lee, W. L. M., 335 

Leeson, C, 408 

Leuba, J. H., 114 

Lewis, B. G., 436 

Lex talionis, 251, 260, 364, 418 

Libel, 458, 483 

von Liszt, F., 267 

Lombroso, C, 10, 45, 54, 59, 101, 
109, in, 112, 128-31, 139, 152, 
156, 172, 181, 187-90, 191, 192, 
193, 207-8, 226, 231, 246, 303, 
463, 464, 495-7, 502 

Lowrie, D., 442 

Lydston, G. F., 434 

Lyon, F. E., 411 

M 

McAdoo, W., 354 
McConnell, R. M., 380 
Macdonald, C. F., 463 
McNamara, J. B., 480 
McNamara, J. J., 480 
Maconochie, A., 435 



Magic, 12, 15-18, 20-1, 28-9, 365-6, 

368 
Maine, H. S., 254, 257-8 
Maitland, F. W., 254, 260, 263, 265 
Makarewicz, J., 357, 358 
Malingering, 434 
Manouvrier, L., 130 
Mansfield, Lord, 472 
Marro, A., 182 
Martyn, F., 442 
Maudsley, H., 187 
Maurer, C. A., 338 
Maxwell, J., 456 
Mayo, K., 338 
Mayo-Smith, R., 45, 56, 240 
von Mayr, G., 493 
Medical jurisprudence, 290-3, 295 
Mental conflicts, 180 
Mental repressions, 180 
Mental tests, 161-3 
Meteorology, 4, 44-53 
Meyer, A., 175, 179 
Militarism, 99-105 
Militia, 338-9 

Mind, the, 5, 131-5, 157-8, 181-4 
Misdemeanor, 266 
Molineaux, R. B., 409 
Mommsen, Th., 296 
Montague, H., 243 
Montesquieu, C. L., 280, 363 
Moral ideas, 9, 14, 18-19, ni-12, 

154, 373, 377, 489 
Morris, W. A., 335 
Morrison, W. D., 216, 240 
Mutilation, 358, 359 

N 

Nervous system, the, 5, 13 1-8 
Neurasthenia, 179 
Neuroses, the, 137, 148, 178-9 
Newkirk, H. D., 502 
Nitsche, P., 439 

O 

Oath, 285, 295-7 
Oberndorf, C. P., 173 
Obscenity, 482 
Occupations, 81-4 



520 



INDEX 



von Oettingen, A., 55 
Oldfield, J., 411 
d'Olivecrona, K., 411 
Oppenheimer, H., 18, 19, 20, 22, 23, 

254, 358 
Ordeal, 285-6, 365 
Ordway, E. B., 223-4 
Osborne, T. M., 436, 440 
Ottolenghi, S., 343 



Paranoia, 176 

Pardon, 413 

Paresis, 175-6 

Parker, A. J., 266 

Parker, G. H., 127 

Parmelee, Maurice, 65, 88, 89, 90, 
102, 104, 112, 116, 128, 129, 
131, 140, 142, 144, 145-6, 170, 
218, 219, 220, 264, 303, 304, 
340, 370, 379, 384, 387, 417, 
482, 496-7 

Parole, 446-7 

Parsons, P. A., 193 

Paterson, D. G., 169 

Patterson, J., 475 

Paul, 1 14-15 

Penal code, 254-6 

Penal labor, 360, 421-2, 427-32, 

447 
Penology, 5 
Pepler, D., 408 
Perrier, C., 109 
Peterson, F., 175 
Phelps, E. B., 120 
Phrenology, pseudo-science of, 4 
Physiognomy, pseudo-science of, 4 
Physiology, 4, 5, 128 
Pickpocketing, 53, 58, 196 
Pike, L. O., 260, 336, 358, 410 
Pintner, R., 169 
Plants, 10 

Plea of guilty, 307-9 
Poetic penalties, 364-5, 418 
Poisoning, 23 
Poletti, 123, 124 
Police, the, 55-6, 60, 97, 335~54, 

466-7 



Police — continued. 

administration of, 336-9 

corruption of, 344-50 

functions of, 335-6, 340-1 

organization of, 336-9 

training of, 341-3 
Politics, 4 

Pollock, F., 260, 263, 265 
Population, 4, 54-5, 61, 64-6, 482, 

489-90 
Posse comitatus, 335 
Poverty, 63-4, 80-1, 83-4, 88-91, 

217-18, 490-1, 492 
Preliminary detention, 352-3 
Prescott, W. H., 303 
Press, the, 1 19-21 
Presumption of innocence, 283, 289 
Prevention of crime, 364-5, 489-92 
Prices, 71-4, 76, 104, 490, 493-4 
Prince, Morton, 254 
Prins, A., 443 
Prison, 421-40, 441-7 

administration, 424-5 

discipline, 425, 433~6 

labor, 427-32 

marking system, 435 

psychosis, 439 

reception and observation, 444 

self-government, 435-6 

sex problems, 437-8 

type, 439-40 

Proal, L., 453 

Probation, 400-4 

Probation officer, 306-7, 401, 402-3 

Procedure, criminal, 272-84 

of accusation, 273-5, 279-81, 327 

of investigation, 275-8, 279-81, 
327 

reform of, 281-4, 305-7, 420 
Profanity (see Blasphemy) 
Proof, 285-6 

burden of, 289 
Prosecution, public, 280, 301-4, 327 
Prostitution, 246-8 
Protestantism, 109 
Provisional liberation, 352 
Psychasthenia, 179 
Psychiatry, 4, 5 



INDEX 



521 



Psychology, 4, 5 

criminal, 5 

of testimony, 297-300 
Public opinion, 9, 27-8 
Punishment, 357-72 

equivalents or analogues of, 8-9 

forms of, 359-65 

individualization of, 284, 309-10, 

334, 387-8, 389-409, 4I4-I5 
objects of, 358-9 



Quinton, R. F., 362 

R 
Race, 138-41 
Radicalism, 461-2 
Recreation, 63, 226-7, 43 2_ 3 
Reformation, 359 
Reformatory, 422, 428, 445 
Reform school, 422, 445 
Regis, E., 463 
Rehabilitation, 408 
Religion, 12, 15-18, 28, 30, 32-3, 
106-15, 253, 296, 368, 432, 470- 
9 
Render, W. H., 362 
Responsibility, 373-88, 475 
penal, 290-1, 365, 378-80, 384-8, 

404-5 
Restitution, 359, 360, 404, 448-9 
Rigby, L. M., 219 
Riis, J. A., 229 
Robertson, J. M., 457 
Robinson, L. N., 202, 444 
Robinson, W. C, 269, 474 
Roman law, the, 255, 256-8, 264, 

275, 296 
Romilly, S., 362 
Ross, E. A., 27, 112, 121 
Rossy, C. S., 169 
Russell, C. E. B., 219 
de Ryckere, R., 83 



Sabbatarian laws, 477-8 
Sacrilege, 21 
Salt, H. S., 448 



de Sanctis, S., 162, 502 
Schofield, H., 485 
Schroeder, T., 460, 482-3 
Science, 59-60, 97, 1 13-16, 371 
Seasons, the, 4, 45-8, 69-71 
Sedition, 459 
Seebohm, F., 252, 254 
Seebohm, H. E., 252 
Sentence, indefinite, 397-400 

indeterminate, 284, 397, 398 

revision of, 284, 331, 408-9 

suspension of, 400-4 
Sernicoli, E., 465 
Servier, 415 

Sex, 22, 119, 180, 437-8, 482 
Sex differences, 240-3 
Shaftesbury, A., 386 
Shame, punishment by, 360-r 
Sherlock, E. B., 158-9 
Shipley, M., 413 
Sighele, S., 121, 179, 180 
Simon, T., 161, 168, 169 
Slander, 458, 476, 483 
Social control, 5-6, 25-39, 251, 263, 

373, 377-8, 492 
Social progress, 105, 122-4, 455, 

469-70, 483, 484-90, 492 
Society, 5 
Sociology, 4 

criminal, 5 
Solitary confinement, 425-6 
Sommer, R., 181 
Spalding, W. F., 336 
Spaulding, E. R., 168, 169 
Speech, 9 
Spencer, H., 448 
Spitzka, E. A., 419 
Spitzka, E. C, 463 
Standard of living, the, 90, 491 
State, the, 29, 251 
Statistics, 4-5, 97 
Steinmetz, S. R., 19 
Stekel, W., 178 
Stephen, J. F., 256, 257, 260, 268, 

322, 358, 386, 477 
Sterilization, 449 

Struggle for existence, the, 25-6, 
63-4, 67-8, 367, 376-7, 489 



522 



INDEX 



Suggestibility, 179-80 
Suicide, 123, 481-2 
Sumner, W. G., 27 
Sumptuary laws, 34, 457^ 479 
Sutherland, A., 375 
Sutherland, J. F., 200 



Vengeance, 251-2, 255, 274, 

384, 385-6, 403-4, 4i8 
Viaud, J., 418 

Vice, 34-5, 62-4, 97, 117, 345-9 
Vizetelly, E. A., 465 
Voltaire, F. M. A., 363 



359, 



Taboo, 24, 32 
Tanzi, E., 175 
Tarde, G., 75, 85, 99-100, 123, 179, 

200-1 
Tarnowski, E., 466, 494 
Tarnowsky, P., 246, 496 
Taxes, 103-4 
Terman, L. M., 161 
Teulet, A. F., 267 
Theater, 227 
Thomas, W. I., 242 
Topography, 4, 43 
Tort, 24, 255, 256, 271, 360 
Torture, 286, 359, 365, 369 
Trade cycle, the, 71, 75, 87, 91, 

490 
Transportation, 363-4 
Treason, 20, 265, 419, 454, 459 
Tredgold, A. F., 137, 147, 152, 159- 

60, 161, 165 
Trespass, 266 

U 

Unemployment, 53, 490 

U. S. Census, 78, 204, 210, 212, 232 

U. S. Constitution, 431-2, 471, 473- 

4, 484-5 
U. S. Immigration Commission, 228 



Vacher de Lapouge, C, 138 
Vallon, C, 464 



W 

Wager of battle, 285 

Wager of Law, 285 

Wages, 71-3, 490 

Wake, C. S., 18, 374 

Wallin, J. E. W., 170 

Wallstein, L. M., 295 

War, 99-105, 366, 417, 4i9, 454, 459 

Wealth, 63-4, 80-1, 91, 490 

Weather, the, 4, 48-51, 52-3 

Webster, H., 24, 478 

Westermarck, E., 10, 14, 21, 254, 

358, 367-8, 374, 375, 386, 478 
Wheeler, G. C, "29, 273 
Whipple, G. M., 170 
White, W. A., 439, 502 
Whitin, E. S., 429, 43©, 431 
Whitlock, B., 349 
Wigmore, J. H., 254 
William II, 254 
Williams, J. H., 168 
Wilmanns, K., 439 
Wines, F. H., 359, 361 
Workhouse, 443-4 
Wulffen, E., 181 



Yerkes, R. M., 162, 169 
Z 



Zenker, E., 465 
Zoccoli, E., 465 
Zoology, 4 



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